V 


M     •• 


._    I 


THE 

POLITICAL  GRAMMAR 

OF    THE 

UNITED    STATES; 

Oli,   A 

COMPLETE  VIEW  OF  THE  THEORY  AND   PRACTICE 

OF   THE 

GENERAL  AND   STATE   GOVERNMENTS, 

WITH    THE    RELATIONS    BETWEEN    THEM. 
DEDICATED    TO    THE 

YOUNG  MEN  OF  THE  UNITED  STATES. 


BY    EDWARD    D.    MANSFIELD, 

LATE    PROFESSOR    OF   CONSTITUTIONAL   LAW   IN   CINCINNATI    COLLEGE. 


A   NEW  AND   REVISED   EDITION; 

WITH    THE    LATEST    AUTHORITIES. 

ADAPTED   TO  THE   USE   OF 

COLLEGES,  ACADEMIES   AND   SCHOOLS. 

CINCINNATI: 
PUBLISHED    BY     E.D.    TRUMAN, 

NO.    Ill    MAIN   ST. 
1849. 


Entered  according  to  act  of  Congress,  in 

theyea>  \  b*U, 

by 

E.  D.  TRUMAN 

In  the  Clerk's  Office  of  the  Dis   ict . 

Jourt  of  Ohio. 

'  3>tiW* 


CINCINNATI: 

gTEREOTYPED    BT    E.    SHEPARD, 

Printed  by 
MORGAN    &   OVEREND. 


cX  c 


PREFACE  TO  THE  SIXTEENTH  EDITION. 


It  is  now  thirteen  years  since  this  work  was  first  issued 
from  the  press.  In  that  time,  it  has  been  continually  be- 
fore the  public,  and  has  contended  with  the  competition 
of  some  ten  or  twelve  other  works,  prepared  by  intelli- 
gent and,  in  some  instances,  distinguished  writers,  for  the 
same  purpose.  The  fact  that  it  has  sustained  itself  against 
such  active  rivalry,  and  is  retained  in  some  of  the  best 
institutions  of  the  country,  is  its  best  recommendation. 
In  fact,  it  has  always  received  more  regard  from  profes- 
sional teachers  than  the  author  had  anticipated. 

This  work  was  prepared  when  nothing  of  the  same 
kind  was  before  the  public  mind.  In  this  respect,  the 
writer  was  a  pioneer.  His  object  was  to  create,  as  well 
as  to  extend,  a  desire  for  knowledge  in  the  great  princi- 
ples and  constitutional  law  of  our  republican  institutions. 

That  he  has  succeeded  in  no  small  degree  is  apparent. 
Many  of  our  Colleges,"  Academies  and  Schools,  have  com- 
menced teaching  the  provisions  and  principles  of  the 
Constitution,  as  they  are  written  and  as  they  have  been 
developed  in  the  practice  of  more  than  half  a  century. 
The  people  demand  this  species  of  instruction,  and  it  is 
hoped  that  it  will  soon  be  given  in  all  the  higher  schools 
of  our  country.  To  meet  this  demand,  the  author  has  re- 
vised the  work,  and  prepared  this  new  edition,  with  the 
latest  emendations  which,  the  advance  of  time  and  law 
has  made  necessary. 

Cincinnati,  May  16^,  1849. 


wm 


PUBLISHER'S    ADVERTISEMENT. 


From  the  numerous  recommendations  of  Mansfield's  Political 
Grammar,  .the  following  are  selected,  as  showing  the  high  esti- 
mation in  which  it  is  held  by  distinguished  scholars  : 

"A  school  book  containing  a  brief  historical  sketch  of  the  political  organiza- 
tion of  the  United  States,  and  a  correct  delineation  of  the  theory  and  operation 
of  the  General  and  State  Governments,  has  long  been  desired  to  promote  the 
well-being  of  society  and  perpetuate  our  free  institutions.  We  cannot  expect 
to  carry  into  successful  practice  the  fundamental  principles  embodied  in  our 
Constitutions,  unless  a  knowledge  of  those  principles  is  widely  diffused  among 
the  people,  and  imparted  in  common  education.  Feeling  much  solicitude  on 
the  subject,  I  have  examined  <  The  Political  Grammar  of  the  United  States,' 
by  Edward  D.  Mansfield,  with  an  eye  to  its  adaptation  to  the  desired  end.  I 
am  happy  to  say,  that  the  Grammar,  as  a  text  book  of  the  elementary  terms, 
definitions  and  principles  of  our  written  Constitutions,  is  a  work  of  great  merit, 
and  superior  to  any  of  the  l.ind  that  has  come  under  my  observation.  The 
introduction  of  this  valuable  work  into  common  use,  and  into  common  schools, 
cannot  fail  of  good  results  in  the  diffusion  of  correct  political  instruction,  tend- 
ing to  the  preservation  of  political  liberty.  JOHN  C.   WRIGHT." 

«'  We  cordially  recommend  *  The  Political  Grammar  of  the  United 
States,  by  Edward  D.  Mansfield,  Esq.'  The  work  is  comprehensive;  it 
covers  the  whole  ground,  while  it  leaves  out  no  detail  necessary  to  illustrate 
and  establish  the  great  principles  of  our  government;  and  yet  it  is  so  moderate 
in  point  of  size  and  expense,  as  to  be  within  the  reach  of  all.  It  is  simple  and 
lucid  in  order.  Every  thing  in  it  is  well  digested.  The  style  throughout  is 
clear  and  calm,  though  sufficiently  diversified  and  animated  to  make  it  alway» 
interesting. 

"  There  are  other  books  on  the  same  subject,  of  larger  bulk  and  pretensions, 
but  we  know  of  none  so  admirably  fitted  for  students  of  all  classes,  from  the 
Common  School  up  to  the  University.  As  a  brief  practical  manual. of  sound 
political  knowledge,  it  ought  to  be  in  the  hands  of  all  the  people. 

B.  P.  AYDELOTT,  D.  D.,  late  President  of  Woodward  College. 
WILLIAM  H.  McGUFFEY,  Professor  in  the  University  of  Virginia,  ■ 

C.  E.  STOWE,  Professor   in  Lane  Seminary,  Cincinnati,  author  of 

4  Report  on  Prussian  System  of  Education.1  " 

From  the  Muskingum  County  Lyceum. 

The  following  notice  of  the  Political  Grammar  is  from  a  Committee  of  the 
Muskingum  County  Lyceum  of  Practical  Teachers,  who  reported  on  books 
suitable  to  be  used  in  Schools,  Academies,  &c: 

*  *  *  M  The  School  House  is  the  proper  place  to  lay  the  foundation  of  a 
correct  knowledge  of  political  science;  and  for  this  reason  the  Committee  have 
thought  proper  to  call  your  attention  to  the  subject,  and  to  introduce  to  you  the 
♦  Political  Grammar,'  not  alone  as  the  best,  but  as  the  only  work  within  their 
knowledge,  really  deserving  the  name  of  a  political  class  book.  It  is  elementa- 
ry and  logical;  and  no  book  can  more  clearly  give  the  outlines  of  any  science, 
than  it  gives  those  of  political  law  and  action;  and  your  Committee  feel  confi- 
dent that  its  general  introduction  into  our  schools  and  colleges,  will  tend  more 
to  secure  the  future  stability,  glory  and  happiness  of  our  country,  than  almost  any 
other  event;  and  they  cannot  omit  this  opportunity  of  expressing  theii  thanks  to 
its  talented  and  distinguished  author,  for  the  invaluable  acquisition  to  the  school- 
masters' usefulness  and  influence,  with  which  this  volume  furnishes  them." 


INDEX. 


A  SECTION. 

Accounts, -        238 

Adjournment — neither  House  can  adjourn  without 
the  other's  consent,  -         -         -         *  89,  90 

.Adjutant  General, 531 

Alabama,  when  admitted,     -         -  .      - 

Alien,     - 

Amendments,     - 

Arkansas,  when  admitted, 

Arms,  right  of  the  people  to  bear, 

Arrest,  privilege  from, 

Attorney  General, 

Bail,  excessive,         - 431 

Bill  of  Attainder, 234,249 

Bills  of  Credit, 245,  248 

Bills  for  Revenue,  where  must  originate,      -      102,  104 
Bounty  Land  Office,         -         -   .      -         -         -         531 


-  147-149,  153 

411-413,423-434 

463 

-  427 
91,93-99 

-  544 


Capitation  Tax,       .... 

Census, 

Charter  Governments, 

Charge  d'  Affaires, 

Citizens  of  each  state,  privileges  of, 

Citizenship, 

Colonies,  forms  of  government  in,     - 

Coining  Money,  right  of, 

Compact,  or  Agreement  with  another 

a  foreign  state,  forbidden, 
Confederation  of  1643,     - 


235 

-  47 

3 

-  416 
399, 400 

-  343-346 
■    •         -  2 

-  244 
state,  or  with 

-  272,  282 
-     17-19 


viii  INDEX. 

E 

Elections  for  Senators  and  Representatives,  times, 

places  and  manner  of  holding,  -         -         72, 73 

Election  returns,  and  qualifications  of  members  of  * 

Congress,  • 76, 78 

Electors  of  President,  how  chosen,     -         288,  289,  297 

Embassador,  what, 514 

Engineer  Department, 531 

Executive  of  the  United  States,  who,     -         -    286,  287 

Ex  post  facto  law, 234 

Expulsion  of  members  of  Congress,  what  for,  -    82 

Electors  in  Ohio,  who,       .....       479 

Envoy,  who, 515 

Executive,  duties  of,           -         -         -         508,509,510 
Executive  power, 582 

F 

Fugitives  from  justice,    -         -'  -  399-401 

Foreign  intercourse, 456 

Florida,  received  as  a  state,     -        -        -         -  463 

g 

Government  of  the  U.  States,  is  a  republic,        -         489 
"  is  a  federative  republic,  490 

"  is  a  democratic  federa- 

tive republic,      -      491 
u  "  "  is  sovereign  in  its  na- 

tional capacity,     -     500 
"  "  "  is  not  a  mere  league,     499 

"  "  sanction  of,  is  responsi- 

bility to  the  people,  494 
"  "  "  principle  of,  is  the  vir- 

tue of  the  people,      495 
"  u  "  foundation  of,  is  the  con- 

sent of  the  people,    493 
Governments  of  the  states  are  sovereign  in  a  munici- 
pal capacity,         -         -         -         -         -         -         501 

Georgia  ratified  the  Constitution,  -        -        -     463 


INDEX  IX 

H 

House  of  Representatives,  how  composed,  -  37 

u  "  power  of  impeachment,  50-53 

Habeas  Corpus,  Writ  of,  ...  230-233 

High  Seas, 187 

Home  Department, 535 

I 

Imprisonment,  judgment  upon,         ...  70 

Importation  of  slaves,  ....     228, 229 

Imposts  and  duties,  states  forbidden  to  lay,  without 
consent  of  Congress,         -         -        -       272, 275, 277 

Inspection  laws, 273, 275 

Importation  laws, 272,  273 

Indian  Bureau, 535 

Indian  Relations, 540 

Illinois  received, 463 

Indiana  received,  -         -         -         -         -  463 

Iowa  received, 463 

J 
Journal  of  proceedings  in  Congress,         -         -  87 

Judiciary  of  the  United  States,  how  constituted,    -   329 
"  "  "  how  organized,     -     561 

"  "  "  its  object,         -         562 

"  "  "  its  officers,  -     563 

;'  "  "  its  process,       -         560 

"  "  "  its  mode  of  executing 

judgment,         -     586 
Judiciary,  Supreme  Court,        -         -         -         324, 325 
"  inferior  Courts,  what,  -         -  326 

"  Circuit  Courts,  how  organized,  -         326 

"  District  Courts,  how  organized,     -        -    327 

"  compensation  of  Judges,         -         -    324, 328 

Judicial  power,  how  far  it  extends,     -         -         329.  382 

Judicial  functions, 382 

Jurisdiction,  Common  Law,       -         -         -         -        370 
"  Admiralty  and  Maritime,    -     '    -    371-381 

Justice  of  the  Peace, 575 

Judiciary  of  Ohio,       - 478 


INDEX. 


Kentucky  received, 


K 


463 


Land  Office. 
Lands,  mode  of  survey, 
Laws,  preservation  of, 
League  of  1643, 
Letters  of  Marque, 
Legislature,  operation  of, 

"  rules  of,     - 

Legislation,  manner  of,. 

"  business  of, 

Louisiana  received, 


M 


Moneys,  how  drawn  from  the  treasury, 
Mint,      ----,. 

Marshal,  office  of, 

Maine  received  as  a  state,         - 

Maryland  ratified,       - 

Massachusetts  ratified,  .  -         -         -         - 

Michigan  received, 

Missouri  received,   ----- 
Mississippi  received, 

N 
Navy,  commissioners  of,       - 
u       department  of,       - 

New  states, 

National  Government,  powers  of,     - 

New  Hampshire,  ratified  Constitution, 

New  Jersey,  "  " 

New  York,  "  " 

North  Carolina,        "  "        -         - 

O 

Ordinance  of  1787,  at  large — page  228. 
Order,  resolution  and  vote  of  Congress,  must 

signed  by  the  President, 
Oath  to  support  the  Constitution, 


-  535 
537 

-  511 
6,  17-19 

-  243 
547 

-  558 
547-560 

-  551 
403 


237 
545 
565 
463 
463 
463 
463 
463 


46; 


-  533 

532 

403-406 

580 


463 
463 
463 
463 


he 


109,110 
418-420 


INDEX.  XI 


Ordnance  Department, 531 

Operation  of  the  Government,  when  begun,       -         505 
Ohio  received, 463 


Proprietary  Governments,         ....  4 

Patent  Rights, 181,  182 

Priority  of  payment,         ....         222-224 

Presents, 239,240 

President, 286,287 

"  mode  of  electing,  -         -       286-292,  293, 296 

"  qualifications  of,  298, 299 

"  who  shall  fill  his  place  in  case  of  removal,    300 

u  vacancy  in  the  office  of,     -         -         -         301 

"  compensation  of,  -         -         -         -     302 

«  oath  of, 303 

"  power  of,  to  pardon,     -  304, 306 

"  power  of,  to  command,  the  army  and 

navy, 304,305 

"  power  of,  to  make  treaties,        -  307-309 

"  power  of  appointment,         -         307,310-316 

"  to  give  information  to  Congress,     -     317,318 

iC  to  convene  Congress,  -         317,319 

"  to  execute  the  laws,     ....     320 

11  to  receive  embassadors,      -         -         317,321 

"  may  be  impeached,        ....     323. 

Pay  Department, 334 

Pension, 535 

Petition,  the  right  of  the  people  to,  -         424.  426 

Plan  of  1754,        -         -    '     -         -         -         -         20,21 

Patents, 541 

Private*property,  how  taken,        -         «         -         -     390 

Press,  its  freedom, 425 

Post-office  Department, 534 

Postmaster-General,         -         -         -         -         -         534 
Powers  not  delegated,  -----     433 

Public  acts,  records,  and  judicial  proceedings,     396-398 
Purchasing  Department,      -         -         -         -         -     531 
,  Public  ministers,  who  they  are,         -         -         -         513 


XU  INDEX. 

Public  ministers,  credentials  of,  -         -         -     521 

"  ."  privileges,      -         -         -  523-525 

"  "  instructions  of,  ...     522 

Piracy,  what, 185,186 

Passports,  -------     528 

Patents,  commissioner  of,  -  *  -  -  -  541 
Presidential  election,  states  voting  in,  -  -  466 
Pennsylvania,  ratified, 463 

Q 

Quartermaster  General,  -  -  531 

Quorum,      -----  77 

R 

Ratifications,  -  422 

Ratification  of  the  Constitution,  -  435-458 

Religion,  Congress  can  make  no  law  respecting,  425 
Religious  test,  -  -  -  421 

Republican  form  of  government  guaranteed,  -  -  467 
Requisition  Bureau,  -  -  -  531 

Royal  governments,  5 

Rights,  enumeration,  does  not  disparage,       -  432 

Representatives  to  Cong.,  who  shall  be  electors  of,   37,  38 

•"  qualifications  of,         -  -         29-41 

apportionment  of,  -         42, 43, 46 

"  mode  of  electing,  -  45 

Rules  of  proceeding,  each  House  determines,  79,  80 
Rules  and  regulations  of  territories,       -       403,407-410 

S 
Settlement  of  America,  -  -  -  1 

Senate  of  the  United  States,  how  composed,  54,  55 

"  "  how  chosen,  -  56 

"  "  how  divided,     -      *  57, 58 

"  "  vacancies,     -         -     57, 59 

"  «  President  of,     -         62-66 

11  a  power  to  try  impeach- 

ments,      -       77-69,  71 
Senators,  qualifications  of,  -  -       60,61 

Senators  and  Representatives,  compensation  of,     91,  92 
«  "  privileges  of,      91,93-98 


INDEX.  Xlll 

Senators  and  Representatives  shall  not  be  appoint- 
ed to  office,       99-101 
States,  restrictions  on,  -         241,  242,  272,  281-285 

Soldiery  shall  not  be  quartered  in  houses,  -         428 

Searches  and  seizures  shall  not  be,  except,    -         -    429 
State  Constitutions,  when  adopted,        -  -         464 

"     legislation,  its  object  and  extent,  -  573 

"     constitutions,  how  they  agree,         -  481 

«  «  how  they  differ,         -  -       482 

"     department  of,  -  -  -  511 

Secretary  of  Legation,  -  -  518 

Sheriff, 575,576 

State  governments,  operations  of,  -  -       569 

«  «  legislative  functions  of,     -  573 

"  "  judiciary  of,  -  -       574 

"  "  executive  of,  -  -  570 

Subsistence  Department,  -  -  531 

State  governments,      -  463 

Slaves,  ....    228,229,402 

South  Carolina  ratified  Constitution,  -  463 

States,  manner  received,  -  -  464 

"       original,  which,  ...  465 

«       purchased,  which,  -  -       465 

"       annexed,  which,  ...  465 

"       Constitutions,  when  former,         -  468,471 

"       new,  how  admitted,     -  -  470 

"       modes  of  admitting,  -  472 

State  Governments,  in  what  concerned,  -  486 

Suffrage,  right  of,  487 

State  statutes,  construction  of,  -  -  584 

T 

Tax  on  exportation,  236 

Territory,  power  to  acquire,  *             -       226 

Titles  of  nobility  not  grantable,  -         239,  240,  271 

Tonnage  duties,               ...  -       278 

Topographical  bureau,            -  -             -             531 

Treason,              -  392,393,395 

Tennessee  received,               -  -            -             463 
2 


nv  INDEX. 


Texas  annexed, 

-      463 

Treasury,  Department  of, 

529 

u          Secretary  of, 

-       529 

"          1st  Comptroller  of. 

529 

«          2d             "                   - 

-       529 

"          1st  Auditor  of.       -            - 

529 

"          2d         " 

-       529 

«          3d         «                 - 

529 

«          4th       «          .             -            . 

-       529 

"          5th       u 

529 

"          Treasurer  of  the  United  States, 

-       529 

"          Register  of  the  Treasury,  " 

529 

"          Solicitor  of,             " 

-       529 

Trial  by  jury,             -             -               385- 

-392,  396.  397 

Theory  of  the  United  States  government, 

-     '488 

U 

United  States  Bank, 

214-221,276 

V 

Virginia,  recommendation  of  a  convention, 

13 

Vacancies  in  representation, 

48, 49 

Vice  President, 

-     62-64 

Veto,         .... 

105-109 

Vermont  received,         - 

463 

Virginia  received, 

463 

W 

Washington,  letter  of,  to  the  states, 

11,12 

War,  Department  of, 

530 

War-office,              - 

-     531 

Wisconsin  admitted, 

463 

Y 

Yeas  and  nays, 

-      87.88 

INTRODUCTION 


POLITICAL  DEFINITIONS. 

f  1.  Sovereignty, — is  the  highest  power.1 

Thus,  for  a  state,  or  nation,  to  be  sovereign,  it  must 
govern  itself,  without  any  dependence  upon  another  power.3 
It  must  have  no  superiors.*  But  when  a  community, 
city,  or  state  makes  part  of  another  community  or  state, 
and  is  represented  with  foreign  powers  by  that  com- 
munity or  state  of  which  it  is  a  part,  then  it  is  not 
sovereign.* 

2.  Government, — is  the  whole  body  of  constituted 
authority.5  Thus,  from  the  very  origin  of  society,  one 
portion  of  the  people  have  exercised  authority  over  the 
rest.  The  authority  thus  exercised  is  called  the  gov- 
eminent,  and  it  derives  its  just  powers  from  the  consent 
of  the  governed.8 

3.  Law, — is  a  rule  of  action.7  In  this  general  sense, 
it  signifies  the  rules  of  all  action,  and  constitutes  alike 
the  rules .  by  which  the  heavenly  bodies  move,  nations 
are  governed,  and  the  plants  grow.  Law,  in  a  political 
sense,  however,  signifies  a  rule  of  human  action.  In  a 
particular  state,  « it  is  a  rule  prescribed  by  the  supreme 

1  Johnson. 

*  Vattel's  Laws  of  Nations,  p.  16;  Martin's  Laws  of  Nations,  p.  23. 
8  Rutherforth's  Institutes,  p.  282.  *  Martin,  p.  25.         6  Crabbe. 

*  Declaration  of  Independence. 

'  1  Blacks.  Commentaries,  p.  38; — Johnson. 

19 


1(5  INTRODUCTION. 

power  in  the  state,  commanding  what  is  right,  and  for- 
bidding what  is  wrong." 

4.  Constitution, — is  the  constituted  form  of  govern- 
ment.1 It  is  the  fundamental  law;  the  regulation  which 
determines  the  manner  in  which  the  authority  vested  in 
government  is  to  be  executed.2  It  is  delineated  by  the 
hand  of  the  people.3 

5.  A  Despotism, — is  that  form  of  government4  "in 
which  a  single  individual,  without  any  law,  governs 
according  to  his  own  will  and  caprice."  An  example  of 
this  kind  of  government  may  be  found  in  Turkey,  where 
the  sultan  exercises  all  the  powers  of^overeignty,  with 
respect  to  the  general  administration  of  public  affairs, 
but,  even  there,  he  is  limited  by  certain  customs  and 
rules,  as  it  respects  private  justice. 

6.  A  Monarchy, — is  that  form  of  government  in 
which  a  single  individual  governs,  but  according  to 
established  laws.5  The  governments  of  Austria,  Prussia, 
France,  and  England  are  examples  of  this  form  of 
government.  The  limitations  placed  upon  the  monarch 
are,  however,  very  different  in  degree:  thus,  the  power 
of  the  Prussian  monarch  is  very  great,  while  that  of  the 
king  of  England  is  so  small  as  scarcely  to  be  felt. 
The  latter  acts  through  his  ministers,  who  are  held 
responsible  to  the  representatives  of  the  people,  and  can 
maintain  their  power  only  so  long  as  they  can  satisfy 
public  opinion. 

7.  A  Republic, — is  that  form  of  government  in 
which  the  whole  people,  or  only  a  part  of  the  people,  hold 
sovereign  power.6  The  people  of  Athens  were  formerly 
an  example  of  the  first  kind  of  republic,  and  governed 
themselves  by  primary  assemblies  of  the  people,  a  mode 
which  could  only  be  adopted  where  the  people  were 
chiefly  citizens,  and  inhabitants  of  one  capital  city.     In 

I  Crabbe,  Johnson.  *  Vattel,  p.  26,  27. 

*  Supreme  Court ;  2  Dallas,  p.  304.      *  Montesquieu,  book  2d,  chap.  I. 

*  Montesquieu,  Spirit  of  Laws,  book  2d,  chap.  I.  6  Idem. 


INTRODUCTION.  17 

modern  times  the  United  States  are  an  example  of  the 
same  kind  of  republic,  with  this  difference,  that  the  peo- 
ple do  not  govern  themselves  by  their  assemblies,  but 
by  delegates,  or  through  the  principle  of  representation. 
An  example  of  the  second  kind  of  republics  may  be 
found  in  Venice,  Genoa,  and  the  Dutch  States,1  in  ill  of 
which  a  part  of  the  people,  either  absolutely  or  limited- 
ly,  exercised  the  authority.  The  difference  between 
these  kinds  of  republics  will  be  understood  from  the 
following  definitions. 

8-  A  Democracy, — is  when  the  sovereign  power  is 
in  the  hands  of  the  whole  people.12  The  term  Democracy 
is  derived  directly  from  the  Greek  word  Demos,  signi- 
fying the  people. 

9.  An  Aristocracy, — is  when  the  sovereign  power 
is  in  the  hands  only  of  a  part  of  the  people.3  This  word 
is  likewise  of  Greek  derivation.  It  is  compounded  of  the 
adjective  Aristos,  signifying  best  or  wisest,  and  Kratos, 
signifying  power  or  strength;  the  whole  word  signifies 
that  form  of  government  in  which  a  few  of  the  wisest 
and  best  govern.4  Both  Democracies  and  Aristocracies 
are  Republics.* 

10-  A  Party, — is  any  number  of  persons  confeder- 
ated, by  a  similarity  of  objects  and  opinions  in  oppo- 
sition to  others.6  An  illustration  of  this  may  be  found 
anywhere.  In  England,  the  whigs  and  tories  are  two 
great  parties,  which  have  long  divided  the  nation.  In 
France,  during  the  revolution,  the  jacobins  and  royalists 
were  violently  opposed.  On  the  continent  of  Europe 
generally,  there  are  the  parties  of  the  liberals  and 
absolutists.  In  the  United  States,  the  federal  and 
democratic  parties  divided  the  country  till  the  termina- 
tion of  the  last  war. 

i  Martin,  p.  39.  2  Spirit  of  Laws,  book  2d,  chap.  II.  3  fcfeoi- 

4  This  was  the  original  meaning ;  but,  like  other  terms,  it  is  confounded 

m  the  using.     Aristocracies  are  seldom  either  the  best  or  the  wisest. 
6  Both  Athens  and  Genoa  were  republics — the  first  a  democracy  and 

the  second  an  aristocracy.  6  Locke. 


|8  INTRODUCTION. 

11.  A  Faction, — is  any  number  of  persons,  whether 
majority  or  minority,  confederated  by  some  common 
motive,  in  opposition  to  the  rights  of  other  persons,  or  to 
the  interests  of  community.1  The  difference  between 
party  and  faction  then  is,  that  the  former  is  a  difference 
of  principle,  and  is  founded  on  a  general  or  public  object, 
the  latter  may  have  any  motive,  however  personal  or 
selfish,  and  be  directed  towards  any  end,  however  little 
connected  with  the  public  welfare.  Thus,  two  divisions 
of  the  people  differing  as  to  how  the  government  shall 
be  administered,  are  parties;  but  a  section  whose  object 
is  to  keep  one  portion  of  the  people  from  the  enjoyment 
of  power,  or  to  aggrandize  an  individual,  or  to  divide 
among  themselves  all  the  offices  of  state,  is  a  faction. 

12.  Legislature, — is  the  law-making  power.2  Thus, 
m  a  Republic,  it  is  that  branch  of  the  government  in  which 
the  people  have  vested  the  power  to  make  laws. 

13.  Congress, — is  a  meeting  for  the  settlement  of  na- 
tional affairs,  whether  relating  to  one  or  more  nations.3 
In  the  United  States,  the  national  legislature  is  called  the 
Congress;  in  Europe,  a  conference  of  different  powers 
Dy  their  ministers,  is  called  a  Congress;  as  the  meeting 
of  ambassadors  at  Laybach  was  called  the  Congress  of 
Laybach. 

14.  Legislative, — that  which  relates  to  law-making.4 
15-  Executive, — that  which  relates  to  the  execution 

of  the  laws.5  Thus,  the  chief  officer  of  the  government, 
whether  he  be  called  King,  President,  or  Governor,  is 
denominated  the  Executive, — for  on  him,  in  most  cases, 
the  constitution  devolves  the  duty  of  executing  the  laws. 

16.  Judicial,6 — that  which  relates  to  the  administra- 
tion of  justice.  Thus,  judicial  duties  are  those  which 
devolve  upon  the  judges,  who  have  to  decide  upon  what 
is  law,  and  to  adjudicate  between  private  rights. 

17.  Statute  Law, — is  the  express  written  will  of 

1  Federalist.  2  Johnson.  3  Idem.  4  Idem. 

6  Idem.  *  Idem. 


INTRODUCTION.  19 

the  Legislature,  rendered  authentic  by  prescribed  forms.1 
Thus,  the  statutes  of  Ohio  are  the  laws  enacted  by  the 
Legislature  of  Ohio.  It  follows,  from  this  definition  in 
connexion  with  those  of  Constitution  and  Legislature, 
that  statutes  can  be  binding  only  when,  \st,  they  are 
executed  according  to  the  prescribed  forms;  and  'idly, 
when  they  are  consistent  with  the  constitution;  for,  the 
constitution  being  the  fundamental  law,  created  by  the 
people  themselves,  all  other  laws  are  inferior  to  it. 

1 8.  Common  Law, — is  that  body  of  principles,  usages, 
and  rules  of  action  which  do  not  rest  for  their  authority 
upon  the  positive  will  of  the  legislature.2  In  other 
words,  it  consists  of  those  customs  and  rules  to  which 
time  and  usage  have  given  the  sanction  of  law.  Of 
such,  it  is  plain,  must  be  the  great  body  of  the  laws  of  every 
people;  for  the  rules  of  business  and  the  usages  of  society 
are  so  variable  and  complicated,  as  to  be  incapable  of 
fceing  made  permanently  the  subject  of  statute  law.  The 
will  of  the  legislature  being,  however,  under  the  limita- 
tion of  the  constitution,  that  of  the  people,  statute  law  is 
superior  in  force  to  common  law ;  and  wherever  they  are 
inconsistent  with  each  other,  the  latter  is  abrogated  by 
the  former.3 

19.  A  Corporation, — is  defined  to  be  a  body  politic, 
having  a  common  seal.4 — It  is  an  artificial,  or  political 
person,  maintaining  a  perpetual  succession,*  by  means  of 
several  individuals,  united  in  one  body  through  a  com- 
mon seal.  They  have  a  legal  immortality,  except  so  far 
as  they  are  limited  by  the  law  of  their  creation. .  These 
were  originally  created  for  purposes  of  charity,  trade, 
and  education ;  but  are  now  used  for  all  purposes  in  which 
it  is  wished  to  transmit  a  common  property.  Thus,  all 
banks,  turnpike  companies,  colleges,  and  chartered  so- 
cieties are  examples  of  corporations. 

l  Kent's  Coram.  1  vol.  p.  319.  *  Idem.  1  vol.  439. 

*  Black.  Comm.  1  vol.  p.  89.  *  Johnson. 

6  Black.  Comm.  1  vol.  p.  467. 


20  INTRODUCTION. 

20.  Charter, — is  the  act  creating  the  corporation, 
or  separate  government,  or  the  privileges  bestowed  upon 
a  community,  or  a  society  of  individuals.1  It  is  derived 
from  the  Latin  term  charta,  signifying  a  writing.2 

21.  A  Court, — is  denned  to  be  a  place  wherein 
justice  is  judicially  administered.3  In  our  country,  and 
in  the  New-England  States  especially,  Court  has  some- 
times had  another  signification,  that  of  the  legislative 
body;  thus,  the  General  Court  of  Massachusetts  is  the 
legislature.  The  former  is,  however,  the  correct  mean 
ing. 

22.  Municipal, — relating  to  a  corporation.  Munici- 
pal laws  are  civil  or  internal,  in  opposition  to  national  or 
external  laws.4  Thus,  laws  relative  to  the  descent  of 
property  are  municipal  laws;  but  laws  relative  to  war, 
the  army,  and  navy,  are  external  and  national. 

23.  Jurisdiction, — is  extent  of  legal  power.5  Thus, 
a  court  has  jurisdiction  over  certain  things,  as  all  sums 
over  a  certain  amount,  when  its  legal  authority  extends 
over  them.  A  government  has  jurisdiction  over  a  cer- 
tain territory,  when  its  power  extends  over  it. 

24.  Impeachment, — is  a  public  accusation,  by  a  body 
authorized  to  make  it.6  Such  were  the  charges  pre- 
ferred by  the  British  House  of  Commons  against  Warren 
Hastings,  Governor-general  of  India;  and  in  this  country 
by  the  House  of  Representatives,  against  Samuel  Chase, 
one  of  the  judges  of  the  Supreme  Court. 

25.  Verdict, — is  the  true  saying  of  a  jury.7  It  is 
the  answer  which  &jury  make  to  the  court  and  parties, 
when  the  plaintiff  and  defendant  have  left  the  cause  to 
their  decision. 

26.  Judgment, — is  the  sentence  of  the  law  pro- 
nounced by  the  Court.8 

27-  Crime, — a   crime,  or  misdemeanor,   is    an    act 

i  Black.  Comm.  1  vol.  109.        2  Sullivan  Polit.  Class-Book,  49. 
3  Black.  Comm.  3  vol.  p.  23.      *  Story's  Comm.  159.  6  Johnson 

«  J  ohnson ;  Crabbe.     7  3  Black.  Comm.  377.     8  3  Black.  Comm.  395 


INTRODUCTION.  2 1 

committed,  or  omitted,  in  violation  of  the  public  laws, 
either  forbidding,  or  commanding  it.1  A  crime  is  a  vio- 
lation of  the  duty  to  society,  in  its  aggregate  capacity; 
while  a  private  wrong,  is  a  violation  of  the  duty  due  to 
an  individual.  Crime  is  a  civil,  or  legal  term,  signifying, 
not  a  moral  wrong,  but  a  legal  wrong.  Thus,  a  man 
may  have  committed  a  great  moral  wrong,  without  being 
a  criminal;  and  so,  he  may  be  a  criminal,  without  being 
a  moral  offender, — in  the  legal  sense,  falsehood  on  the 
one  hand,  and  killing  game  at  certain  seasons  on  the 
other. 

28.  Treason. — Treason  is  denned  by  the  United  States 
Constitution  to  be, — levying  war  against  them,  or,  in  ad- 
hering to  their  enemies,- — giving  them  aid  and  comfort.2 
The  government  of  the  United  States  is  believed  to  be 
the  only  one  which  defines  precisely ,  the  crime  of  treason; 
and,  without  that  definition,  the  president  Montesquieu 
said,  liberty  could  not  exist. 

29.  Felony, — is  denned  to  be  any  species  of  crime, 
which  occasions  a  forfeiture  of  lands  and  goods.*  Fe- 
lony, in  common  speech,  however,  signifies  a  capital 
offence.     It  may  legally  include  others. 

30.  Reprieve. — A  reprieve  is  the  withdrawal  of  a  judi- 
cial sentence,  for  a  time,  so  that  its  execution  is  suspended.4 

31.  Diplomacy, — signifies  the  intercourse  which  is 
carried  on  between  different  nations  by  means  of  their 
ministers,  or  agents.5 

32.  Revolution, — is  -a  radical  change  in  the  govern- 
ment of  the  country.  It  may  be  made  in  various  ways 
- — by  force  and  blood,  as  in  France,  1792;  by  the  expul- 
sion of  one  family  and  settlement  of  another,  as  in 
England,  1688,  and  in  France,  1830;  or  by  a  separation 
of  one  part  of  a  country  from  another,  as  in  the  United 
States,  in  1776.  Thus,  also,  all  acts  in  opposition  to 
the  laws,  and  which  are  not  legitimate  under  the  consti- 

l  4  Blackst.  5.       2  Constitution  United  States  Court,  3  Sec.  31. 

a  4  Blackst.  94.    <  4  Idem.  394.     *  Sullivan's  Polit.  Class-Book,  225. 


22  INTRODUCTION. 

tution,  are  revolutionary,  because  their  tendency  is  the 
overthrow  of  the  laws. 

33.  Ex  post  facto. — An  ex  post  facto  law  is  a  re- 
trospective criminal  law.  A  retrospective  law  is  one 
which  acts  upon  things  already  done,  and  not  merely 
upon  those  which  are  to  be  done.  An  ex  post  facto  lau> 
makes  something  criminal  which  was  not  criminal  when 
done.  Thus,  if  the  legislature  should  pass  an  act,  de- 
claring that  all  persons  who  had  not  attended  church  last 
year  should  be  imprisoned,  that  law  would  be  unconsti- 
tutional, because  ex  post  facto.  But  if  the  legislature 
should  pass  an  act  that  those  who  had  attended  militia 
duty  last  year  should  be  excused  from  paying  taxes,  and 
those  who  had  not  should  not  be  so  excused,  such  a  law 
would  be  retrospective,  but  not  ex  post  facto,  because  not 
criminal.  An  ex  post  facto  law  makes  past  acts  crimi- 
nal, which  were  not  so  before.1 

34.  A  Bill  of  Attainder, — is  a  special  act  of  the 
legislature,  inflicting  capital  punishments  upon  persons 
supposed  to  be  guilty  of  high  offences,  such  as  treason 
and  felony,  without  any  conviction  in  the  ordinary  course 
of  judicial  proceedings.2  If  it  inflict  a  milder  punish- 
ment, it  is  called  a  bill  of  pains  and  penalties. 

35.  A  Bill, — is  a  term  used  in  legislation,  and  sig- 
nifies the  written  form  of  a  legislative  act  proposed  to  be 


^  36.  Revenue, — is  the  money  raised  for  the  uses  of 
government.  It  may  be  derived  from  various  sources  t 
but  must  be  raised  by  the  public  consent,  and  converted 
to  public  uses. 

37.  A  Treaty, — is  an  agreement  between  independent 
nations,  and  by  the  laws  of  nations,  can  be  made  only 
by  the  sovereign  power,  and  is  binding  on  the  whole  com- 
munity.3 

38.  Naturalization, — is  the  act,  by  which  a  foreigner 

i  Story's  Comm.  212,  213.  2  idem.  211. 

»  1  Blackst,  257— Puff.  Laws  of  Nations,  b.  8,  ch.  9,  sect.  6. 


INTRODUCTION.  23 

is  made  a  citizen.  The  law,  by  which  this  is  permitted, 
is  called  a  naturalization  law;  and  the  acts  by  which  a 
party  avails  himself  of  this  law  are  the  naturalization. 
America  is  believed  to  be  the  only  country,  where  a 
general  law  is  enacted  for  this  purpose.  In  England,  and 
most  other  countries,  it  may  be  done,  as  a  matter  of 
special favor ;  but,  even  then,  the  privilege  never  extends 
so  far,  as  to  make  a  foreigner  eligible  to  the  higher  of- 
fices of  state.1 

39.  Bankruptcy, — is  the  act  of  becoming  a  bankrupt. 
Bankrupt,  bankruptcy,  and  bankrupt  laws,  are  legal 
terms,  signifying  a  particular  kind  of  insolvency,  or  failure 
to  pay  one's  debts.  In  common  speech,  one  who  cannot 
pay  his  debts,  is  a  bankrupt, — but  it  is  not  so  in  law. 
Thus,  by  the  law  of  England,  a  bankrupt  is  a  trader, 
who  secretes  himself,  or  does  other  acts  tending  to  de- 
fraud his  creditors.2  In  the  United  States,  no  general 
bankrupt  law  has  been  made;  but,  were  there  one,  a  bank- 
rupt would  be  one  defined  and  described  by  that  law. 
*  40.  Test  Act, — Religious  test;  these  are  also  legal 
terms,  and  refer  to  certain  legal  acts  of  past  times.  A 
Test  Act  is  one,  which  requires  all  public  officers  and 
persons  becoming  citizens,  before  they  can  enter  upon 
their  duties,  to  subscribe  to  certain  religious  opinions, 
and  perform  certain  religious  acts.  By  the  Constitution 
of  the  United  States,  this  is  expressly  forbidden.  But, 
under  all  other  governments,  something  of  this  kind  is 
required;  thus,  by  the  statutes  of  England,  all  civil  and 
military  officers,  are  required  to  make  a  declaration  against 
transubstantiation,  partake  of  the  Sacrament  of  the  Lord's 
Supper,  and  obtain  certificates  of  the  same,  before  they 
can  enter  upon  any  such  office.3 

41.  The  Ballot, — signifies  the  ball,*  or  ticket,  by 

»  I  Blackst.  374. 

2  This  is  the  definition;  but  the  bankrupt  is,  now,  one  who  honestly, 
as  well  as  fraudulently  fails,  and  gives  up  his  property  to  his  creditors.— 
2  Blackst.  471. 

3  Idem.  58— Wat.  95,  ch.  2.  *  Johnson. 


24  INTRODUCTION. 

which  persons  vote  at  an  election.  To  ballot  signifies 
voting  by  ballot,  i.  e.  by  ball,  or  ticket.  Formerly, 
voting  was  altogether  viva  voce,  that  is,  by  the  voice, — 
the  elector  designating  by  name  the  person  voted  for; 
now,  elections  are  generally  made  by  ballot.  The  name 
of  the  person  voted  for  is  written  on  a  ticket,  and  depo- 
sited in  a  box. 

42.  Quorum, — is  such  a  number  of  any  body  as  is 
necessary  to  do  business.1  Thus,  when  it  is  said  there 
shall  be  eleven  directors  of  any  institution,  and  seven 
shall  constitute  a  quorum,  seven  is  the  number  necessary 
to  do  business ;  and  unless  the  contrary  is  expressed,  a 
majority  of  a  quorum  only  is  necessary  to  a  decision. 
Hence  it  often  happens,  that  less  than  a  majority  of  the 
whole  decide  important  questions. 

43.  Majority  and  Minority. — A  majority  is  any 
number  greater  than  one  half,  and  a  minority  is  any  num- 
ber less  than  one  half.  One  half,  then,  neither  consti- 
tutes a  majority  nor  minority;  and,  if  a  public  body  were 
so  constituted,  as  to  have  an  even  number,  with  equal 
division  of  opinion,  and  no  chairman,  there  never  could 
be  a  majority,  and  consequently,  no  positive  action. 
This  has  been  the  case  in  some  public  bodies,  and  is 
always  attended  with  difficulty. 

44.  A  Plurality, — is  to  have  more  than  another 
number,  though  not  always  to  have  a  majori+y.of  all  the 
given  numbers.  Thus,  when  there  are  several  candi- 
dates at  an  election,  one  may  have  a  plurality,  though 
not  a  majority;  for  he  may  have  more  votes  than  any 
one,  though  not  more  than  all  put  together. 

45.  Indictment. — An  indictment  is  a  written  accusa- 
tion of  one  or  more  persons,  of  a  crime  or  misdemeanor, 
preferred  to,  and  presented  upon  oath,  by  a  grand  jury.2 

46.  A  Grand  Jury, — is  a  number  of  men  not  less 
than  twelve,  nor  more  than  twenty-three,  selected  from 
the  people  in  the  body  of  the  county,  to  enquire  into  of- 

t  Johnson.  2  4  Black.  Comm.  302. 


INTRODUCTION.  25 

fences  against  the  states.1  They  are  instructed  by  the 
court  in  the  matters  perlaining  to  their  enquiries,  and 
then  withdraw  to  receive  indictments,  which  are  preferred 
to  them,  in  the  name  of  the  state,  but  at  the  suit  of  a 
private  prosecutor.2  After  an  examination,  such  of  the 
bills  as  are  found  correct,  are  endorsed  "  A  true  Bill,' 
— signed  by  the  foreman;  and  hence  becomes  an  official 
accusation,  to  be  rebutted  only,  by  proof  at  the  trial. 

47«  Taxes. — All  contributions  imposed  by  the  govern- 
ment upon  individuals,  for  the  service  of  the  state,  are 
called  taxes,  by  whatever  name  known.8  Thus,  the  tithes 
imposed  upon  the  people  of  England  for  the  support  of 
church  government  is  a  tax :  so  also  imposts,  duties,  ex- 
cises, &-c,  are  taxes. 

48.  A  Legal  Tender, — is  the  tender  of  such  an 
article  as  the  law  requires  to  be  made,  in  payment  of  a 
debt.  In  the  United  States,  gold  and  silver  coin  is  the 
legal  tender;  and  the  states  are  forbid  making  anything 
else  a  tender;  but  it  is  not  so  in  many  countries,  nor  has 
it  always  been  so  in  this. 

J  4  Blackst.  302.         •  4  Blackst.  302,         »  2  Story's  Comm.  419. 
3 


26  ORIGIN    OF    THE 


CHAPTER  I 


MtlGIN    OF   THE  CONSTITUTION  OF  THE  UNITED   STATES 


$  1.  The  continent  of  North  America  was  chiefly 
settled  by  emigrants  from  Great  Britain.  The  jurisdic- 
tion over  the  new  region,  as  well  as  the  title  to  its  lands, 
was  claimed  by  the  mother  country,  under  the  color  of 
discovery  and  conquest.  Hence,  to  acquire  the  right  of 
property,  as  well  as  to  sustain  themselves  against  oppo 
Bition,  the  authority  of  Great  Britain  became  necessary 
to  the  early  colonists.  This  was  given  in  the  form  of 
grants  and  charter?,  to  companies  and  large  proprietors. 
Such  was  the  grant  of  the  territory  of  Massachusetts  to 
the  Plymouth  Company,  and  of  Maryland  to  Lord  Balti- 
more.1 

\  2.  There  were  originally  three  different  forms  of 
government  in  the  colonies,  viz. — The  Charter,  the  Pro- 
prietary, and  Royal  Governments.  The  Charter  Govern- 
ments were  confined  to  New-England;  the  middle  and 
southern  colonies  were  divided  between  the  Proprietary 
and  Royal  Governments, 

\  3.  The  Charter  Governments  were2  composed  of  a 
Governor,  Deputy-governor,  and  Assistants,  elected  by 
the  people ;  these,  with  the  freemen,  i.  e.  citizens  of  the 
colony,  were  to  Compose  the  "General  Courts,"  which 
were  authorized  to  appoint  such  officers,  and  make  such 
laws  and  ordinances  for  the  welfare  of  the  colony  as  to 
them  might  seem  meet.  These  first  forms  of  govern- 
ment in  New-England  contained  the  same  principles 
as,  and  were  doubtless  the  origin  of,  our  republican 
system. 

»  Pitkin's  Civil  History,  p.  31.         *  Idem.  p.  36. 


CONSTITUTION    OF    THE    UNITED    STATES.  27 

5  4.  The  Proprietary1  governments  were  those  of 
Maryland,  Pennsylvania,  the  Carolinas,  and  Jersey. 
Part  of  these  soon  became  royal  governments.  In  the 
proprietary  governments,  the  power  of  appointing  officers 
and  making  laws  rested  in  the  proprietors,  by  the  advice 
and  assent,  generally,  of  the  freemen.  In  some  of  them, 
as  in  the  Carolinas,  singular  irregularities  were  found. 
In  all,  great  confusion  took  place. 

j  5.  In  the  royal2  governments,  which  were  New- 
York,  Virginia,  Georgia,  and  Delaware,  the  Governor  and 
Council  were  appointed  by  the  crown;  and  the  people 
elected  representatives  to  the  colonial  legislature.  The 
Governor  had  a  negative  in  both  houses  of  the  legisla- 
ture ;  and  most  of  the  officers  were  appointed  by  the 
king. 

{  6.  These  different  governments,  operating  also  upon 
a  people  of  different  habits  and  manners,  as  the  Puritans 
of  New-England,  the  Cavaliers  of  Virginia,  and  the 
Quakers  of  Pennsylvania,  produced  many  diversities  of 
legislation  and  political  character.  Notwithstanding 
these,  however,  the  necessities  of  a  common  danger 
from  hostile  tribes  of  Indians,  and  of  a  common  interest 
from  similarity  of  circumstances,  soon  induced  a  union, 
or  confederacy  of  the  colonies.  Those  of  Massachusetts, 
Plymouth,  Connecticut,  and  New-Haven,  as  early  as 
1643,  formed  a  league,  offensive  and  defensive,  which 
they  declared  should  be  perpetual,  and  distinguished  by 
the  name  of  the  United  Colonies  of  New-England.  This 
confederacy  subsisted  for  forty  years,  under  a  regular 
form  of  government,  in  which  the  principle  of  a  dele- 
gated congress  was  the  prominent  feature. 

§  7.  A  congress  of  commissioners,  representing  New- 
Hampshire,  Massachusetts,  Rhode  Island,  Connecticut, 
New-York,  Pennsylvania,  and  Maryland,  was  held  at 
Albany,  in   1754.     This  convention3  unanimously  re- 

i  Pitkin's  Civil  History,  p.  55.  *  Idem.  p.  71. 

»  Kent's  Comm.  p.  191,192. 


28  ORIGIN    OF    THE 

solved,  that  a  union  of  the  colonies  was  absolutely  ne- 
cessary for  their  preservation.  They  proposed  a  gen- 
eral plan  of  federal  government,  which,  however,  was 
not  adopted. 

§  8.  In  October,  1765,  a  congress1  of  delegates  from 
nine  states  assembled  at  New-York,  and  digested  a  bill 
of  rights  on  the  subject  of  taxation. 

§  9.  In  September,  1774,  an  association  of  twelve 
states  was  formed,  and  delegates  authorized  to  meet  and 
consult  for  the  common  welfare. 

\  10.  In  May,  1775,  the  first  congress2  of  the  thir- 
teen states  assembled  at  Philadelphia ;  and  in  July,  1776, 
issued  the  Declaration  of  Independence. 

$  11.  In  November,  1777,  Congress  agreed  upon  the 
celebrated  Articles  of  Confederation,  under  which  the 
United  States  successfully  terminated  the  Revolution. 
This  was  the  first  formation  of  a  general  government  of 
all  the  states,  and  continued  till  the  adoption  of  the  Con- 
stitution in  1788.  This,  however,  had  inherent  defects, 
which  forced  the  states  to  the  adoption  of  the  present 
system.  During  the  Revolution,  the  pressure  of  an  in- 
stant and  common  danger  kept  the  states  in  a  close  union, 
and  incited  them  to  make  all  possible  efforts  in  the  com- 
mon defence.  When  that  was  over,  however,  mutual 
jealousies  and  separate  interests,  weakening  the  common 
bonds,  soon  proved  the  utter  insufficiency  of  a  mere 
confederacy  for  the  purposes  of  national  government. 
Then  it  was  that  the  ablest  heads  and  the  purest  hearts 
in  the  nation  exercised  their  faculties  in  devising  a  new 
and  better  form  of  government.  General  Washington, 
in  June,  1783,  addressed  a  letter3  to  the  governors  of 
the  several  states,  in  which  he  says,  "There  are  four 
things  which  I  humbly  conceive  are  essential  to  the  well' 
being,  I  may  even  venture  to  say,  to  the  existence  of  the 
United  States  as  an  independent  power.      1.  An  indis- 

i  Kent's  Comm.  p.  193.  2  idem.  195. 

8  Marshall's  Life  of  Washington,  vol.  5,  c.  1.  p.  46. 


CONSTITUTION    OF    THE    UNITED    STATES.  29 

soluble  union  of  the  states  under  one  federal  head.  2. 
A  sacred  regard  to  public  justice.  3.  The  adoption  of 
a  proper  peace  establishment.  4.  The  prevalence  of 
that  pacific  and  friendly  disposition  among  the  people  of 
the  United  States  which  will  induce  them  to  forget  their 
local  politics  and  prejudices." 

\  12.  Under  the  first  head  he  remarked  thai,  "It  is 
only  in  our  united  character  that  we  are  known  as  an 
empire,  that  our  independence  is  acknowledged,  that  our 
power  can  be  regarded,  or  our  credit  supported  among 
foreign  nations.  The  treaties  of  European  powers  with 
the  United  States  of  America  will  have  no  validity  on  a 
dissolution  of  the  Union.  We  may  find  by  our  own 
unhappy  experience,  that  there  is  a  natural  and  neces- 
sary progression  from  the  extreme  of  anarchy  to  the 
extreme  of  tyranny;  and  that  arbitrary  power  is  most 
easily  established  on  the  ruins  of  liberty  abused  to  li- 
centiousness." Such  were  the  sentiments  of  Washing- 
ton, and  such  were  those  then  of  the  nation. 

§  13.  In  January,  1786,  the  Legislature  of  Virginia 
recommended  a  meeting  of  commissioners  from  the 
several  states  to  review  the  powers  of  government. 
The  delegates  of  five  states  met  at  Annapolis,  but  ad 
journed,  proposing  a  general  convention  at  Philadephia 

\  14.  In  1787,  the  convention  of  delegates  from  twelve 
states  was  convened,  and  after  much  deliberation,  formed 
the  present  Constitution  of  the  United  States. 

§  15.  By  resolution1  of  the  convention,  it  was  directed 
to  be  carried  into  effect,  when  ratified  by  the  conventions 
of  nine  states  chosen  by  "the  people  thereof."  That 
ratification,  after  much  opposition,  scrutinizing  discus- 
sion, and  the  adoption  of  several  amendments,  it  finally 
received,  and  all  the  states,  eventually  assenting  to  its 
provisions,  became  members  of  the  Union.  In  1789  it 
went  into  practical  operation,  and  from  that  period  to 
this,  more  than  forty  years,  has  withstood  unharmed 
»  Marshall's  Wash.  vol.  5,p.  129. 


30  ORIGIN    OF    THE 

the  various  violent  influences  of  local  feuds,  opposing 
interests,  domestic  insurrection,  and  foreign  violence. 

$16.  We  have  seen  that,  at  several  different  periods, 
viz.  1643,  1754,  1765,  1774,  1777,  and  in  1787,  the 
territories  composing  what  is  called  the  United  States, 
formed  associations  for  the  purposes  of  a  common  go- 
vernment and  general  welfare.  Let  us  now  examine 
how  these  were  originally  constituted,  and  in  what  man- 
ner modified  by  time  and  experience. 

$  17.  By  the  articles  of  confederation  made  in  1643, 
between  the  colonies  of  Massachusetts,  Connecticut, 
and  New-Haven,  it  was  expressly  declared  to  be  a 
league,  under  the  name  of  the  United  Colonies  of  New- 
England.  The  chief  points  in  this  confederation  were, — 
1st.  That  each  colony  should  have  peculiar  jurisdiction 
and  government  within  its  own  limits.  2d.  That  the 
quotas  of  men  and  money  were  to  be  furnished  in  pro- 
portion to  the  population,  for  which  purpose  a  census 
was  to  be  taken  from  time  to  time  of  such  as  were  able 
to  bear  arms.  3d.  That  to  manage  such  matters  as 
concerned  the  whole  confederation,  a  Congress  of  two 
commissioners  from  each  colony  should  meet  annually, 
with  power  to  weigh  and  determine  all  affairs  of  war 
and  peace,  leagues,  aids,  charges,  and  whatever  else 
were  proper  concomitants  of  a  confederation  offensive 
and  defensive,-  and  that  to  determine  any  question, 
three-fourths  of  these  commissioners  must  agree,  or  the 
matter  is  to  be  referred  to  the  General  Courts.  4th.  That 
these  commissioners  may  choose  a  president,  but  that 
such  president  has  no  power  over  the  business  or  pro- 
ceedings. 5th.  That  neither  of  the  colonies  should  en- 
gage in  any  war  without  consent  of  the  general  com- 
missioners. 6th.  That  if  any  of  the  confederates 
should  break  any  of  these  articles,  or  otherwise  injure 
any  of  the  other  confederates,  then  such  breach  should 
be  considered  and  ordered  by  the  commissioners  of  the 
other  colonies. 


CONSTITUTION    OF    THE    UNITED  STATES.  3 1 

§18.  Now  it  will  be  observed  that  this  confederacy- 
was,  by  agreement,  a  mere  league,  from  motives  of  amity, 
for  objects  of  general  offence  and  defence.  As  such,  it 
was  as  good  a  model  as  any  which  history  presents  us ; 
but  as  a  government,  it  was  utterly  inefficient:  its  prin- 
cipal defects  in  the  last  point  of  view  were,  1 .  The  want 
of  an  Executive,  without  which  it  could  never  act  as  a 
whole.  All  the  acts  of  the  commissioners  had  to  be  en- 
forced by  each  separate  colony:  they  did  not  act  upon 
individuals.  2.  The  want  of  a  General  Judiciary,  by 
which  offences  arising  between  the  several  members, 
or  against  the  whole  confederacy,  might  be  taken  cog- 
nizance of.  3d.  The  want  of  any  general  power  to 
obtain  credit  or  emit  money.  In  short,  this  league  did 
not  pretend  to  be  a  government,  and  was  deficient  in 
nearly  all  the  attributes  of  sovereignty. 

\  1 9.  Upon  the  last  provision,  that  providing  a  reme 
dy  for  breaches  of  the  league  by  one  of  the  confeder- 
acy, it  is  worthy  of  remark,  that  it  never  entered  into 
the  heads  of  people  then,  that  it  was  possible  for  one 
party  to  a  compact  to  make  itself  judges  of  its  own 
breaches  of  it:  on  the  contrary,  it  was  provided  that 
such  breaches  should  be  judged  of  by  the  other  members 
of  the  confederacy.  It  was  reserved  for  a  much  later 
period  of  history,  and  it  would  seem  for  far  more  inge- 
nious men,  to  divine  a  mode  by  which  a  party  to  a  con- 
tract can  at  once  make  itself  a  judge  of  its  own  viola 
tions  of  it,  and  invalidate  at  pleasure  its  provisions. 

$  20.  The  next  plan  of  association  was  that  formed 
by  the  commissioners  who  met  at  Albany  in  1754.  It 
was  not  accepted  by  the  mother  country,  but  may  serve 
to  show  what  progress  in  ideas  of  government  had  then 
been  made  by  the  colonists.  It  is  remarkable  that  the 
scheme  proposed  did  not  purport,  like  the  other,  to  be  a 
league,  or  confederation,  but  a  plan  for  one  general  gov- 
ernment. Its  principal  provisions  were, — 1.  That  the 
general  government  should  be  administered  by  a  presi- 


32  ORIGIN    OF    THE 

dent-general  appointed  by  the  crown,  and  a  grand  coun- 
cil chosen  by  the  representatives  of  the  people  in  their 
general  assemblies.  2.  That  the  council  should  be 
chosen  every  three  years,  and  shall  meet  once  each 
year.  3.  That  the  assent  of  the  president  be  necessaiy 
to  all  acts  of  the  council,  and  that  it  is  his  duty  to  see 
them  executed.  4.  That  the  president  and  council 
may  hold  treaties,  make  peace,  and  declare  war  with 
the  several  Indian  tribes.  5.  That  for  these  purposes 
they  have  power  to  levy  and  collect  such  duties,  imposts, 
and  taxes  as  to  them  shall  seem  just. 

§  21.  It  will  be  seen  that  this  was  a  much  nearer 
approach  to  an  organized  government  than  the  con- 
federacy of  1643-  It  provided  for  a  strong  executive, 
but  was  without  the  sanction  of  a  general  judiciary,  and 
made  no  provision  for  regulating  the  currency. 

§  22.  We  come  now  to  the  articles  of  confederation. 
During  the  early  part  of  the  Revolution,  the  powers  of  a 
general  nature  were  executed  without  question  or 
hinderance  by  a  'congress  of  deputies  from  the  several 
states.  Patriotism  and  a  common  danger  absorbed  all 
other  principles,  and  made  ordinary  ties  unnecessary. 
A  universal  opinion,  however,  prevailed  in  favor  of 
union,  and  after  much  deliberation,  2congress  in  No 
vember,  1777,  agreed  upon  the  articles  of  confederation. 
They  were,  after  various  delays,  ratified  by  the  different 
states;  the  principal  objection  being  in  respect  to  the 
wild  lands,  which  were  claimed  by  several  of  the  states, 
but  which  others  urged  should  go  to  bear  the  common 
burthen.  In  the  sequel,  these  lands  were  nobly  ceded 
by  the  states  who  held  them,  to  the  common  benefit  of 
the  Union. 

$  23.  The  Articles  of  Confederation  provided,— 
1st.  That  the  style  of  the  Confederacy  should  be  the 
"United  States  of  America." 

2d.  That  each  state  should  retain  its  sovereignty, 
i  Journal  of  Congress,  vol.  2,  p.  475.  *  1  Kent's  Coram.  197. 


CONSTITUTION    OF    THE    UNITED    STATES.  33 

independence,  and  such  rights  as  were  not  delegated  to 
the  general  Congress. 

3d.  That  the  object  of  the  league  was  the  general 
welfare,  and  the  common  defence  against  foreign  ag- 
gression. 

4th.  That  the  citizens  of  one  state  shall  have  the 
privileges  of  citizens  in  another,  and  that  full  faith  and 
credit  shall  be  given  to  the  records,  acts,  and  judicial 
proceedings  in  another  state. 

5th.  That  for  the  management  of  the  general  inter- 
ests, delegates  shall  be  annually  appointed  to  meet  in 
Congress, — each  state  having  not  less  than  two  nor 
more  than  seven;  and  that  in  determining  questions  in 
Congress,  each  state  shall  have  one  vote. 

6th.  That  no  state  shall,  without  the  consent  of  Con- 
gress, enter  into  any  treaty  or  alliance  with  any  for- 
eign power  or  nation,  or  with  any  other  state;  nor  lay 
any  imposts  or  duties  interfering  with  any  stipulations 
contained  in  any  treaty  made  by  Congress;  nor  keep 
any  vessels  of  war  or  armed  forces  in  time  of  peace, 
except  such  as  Congress  may  deem  necessary;  nor  en- 
gage in  any  war  without  the  consent  of  Congress,  un- 
less the  state  be  actually  invaded,  or  the  danger  immi- 
nent; nor  grant  letters  of  marque,  unless  such  state  be 
infested  with  pirates. 

•  7th.  All  charges  for  the  general  welfare  shall  be 
defrayed  out  of  a  common  treasury,  which  shall  be 
levied  in  proportion  to  the  value  of  land  within  each 
state. 

8th.  The  "United  States  in  Congress  assembled" 
ehall  have  the  exclusive  right  of  making  peace  and  war; 
entering  into  treaties  and  alliances;  granting  letters  of 
marque,  and  establishing  courts  and  rules  for  the  trial 
of  piracies  and  felonies,  and  determining  questions  in 
relation  to  captures;  and  that  the  Congress  have  the 
power  to  determine  all  questions  and  differences  be- 
tween two  or  more  states,  concerning  any  cause  what- 


34  •  ORIGIN    OF    THE 

ever:  which  authority  shall  be  exercised  by  instituting 
a  court  in  manner  and  form  as  provided,  where  judg- 
ment shall  be  final  and  decisive;  and  that  they  have 
power  to  fix  the  standard  of  weights,  measures,  and 
coin;  establish  Post-offices  and  commission  Officers; 
that  they  shall  have  power  to  appoint  a  committee  of 
the  states,  and  such  other  civil  officers  as  may  be  ne- 
cessary to  manage  the  general  affairs  of  the  United 
States  under  their  direction;  to  elect  their  President;  to 
fix  the  sums  of  money  to  be  raised;  to  borrow  money 
and  emit  bills  of  credit;  to  agree  on  the  number  of  for- 
ces to  be  raised,  which  are  to  be  distributed  among  the 
states  in  proportion  to  their  white  inhabitants;  that  "the 
United  States"  shall  not  exercise  these  powers,  unless 
nine  states  assent  to  the  same,  nor  shall  any  question 
except  that  of  adjournment  be  determined  unless  by  the 
votes  of  a  majority  of  the  states. 

9th.  It  is  further  provided,  that  the  committee  of  the 
states,  or  any  nine  of  them,  shall  be  authorized  to  exe- 
cute, in  the  recess  of  Congress,  such  of  the  powers  of 
Congress  as  the  United  States,  or  any  nine  of  them  shall 
think  proper  to  vest  them  with. 

10th.  All  debts  contracted  under  the  authority  of 
Congress  shall  be  deemed  and  considered  as  a  charge 
against  the  United  States,  for  which  the  public  faith  is 
pledged. 

11th.  That  every  state  shall  abide  by  the  determina- 
tions of  Congress  upon  the  questions  submitted  to  it, 
and  the  union  shall  be  perpetual. 

\  24.  Such  is  a  synopsis  of  the  articles  of  confed- 
eration, under  which  the  United  States  terminated  the 
war  of  the  Revolution,  and  continued  till  the  adoption 
of  the  Constitution.     It  will  be  remarked, 

1.  That  the  states  still  assume  the  style  of  a  league 
or  confederacy,  and  that,  2dly,  they  had  notwithstanding 
granted  away  many   attributes   of  sovereignty,    even 


f 

CONSTITUTION    OP    THE    UNITED    STATES.  35 

greater  than  those  proposed  to  be  vested  in  the  Presi- 
dent and  Council  by  the  plan  of  1754. 

$  25.  This  Confederacy  had  many  obvious  and  pal- 
pable deficiencies,  as  a  government,  principally,  how- 
ever, in  the  mode  and  process  of  its  administration. 

1.  There  was  still  wanting  an  Executive  in  form, 
though  nearly  all  its  powers  were  granted  to  Congress 
and  the  "committee  of  the  states." 

2.  No  general  Judiciary  was  provided;  yet  they  had 
gone  so  far  as  to  provide  a  Marine  or  Admiralty  Court, 
and  a  general  tribunal  to  settle  conflicts  and  disputes 
between  the  several  states. 

3.  The  great  deficiency  was,  that  the  articles  of  con- 
federation did  not  act  upon  individuals,  but  upon  the 
states;  and  that  to  raise  men  and  money,  it  was  neces- 
sary to  act  through  the  medium  of  many  distinct  go- 
vernments. 

Q  26.  By  a  comparison  of  the  original  association  of 
1643,  the  plan  of  1754,  and  the  articles  of  confedera- 
tion, we  find  that  the  minds  of  the  colonists  had  gradu- 
ally tended  from  the  notion  of  separate  sovereignties 
to  that  of  a  general  and  united  government.  Each 
change,  founded  on  experience,  had  given  additional 
strength  to  the  confederacy.  Thus  the  association  of 
1643  was  a  simple  league,  existing  by  means  of  trea- 
ties, and  exercised  through  commissioners;  and  though 
possessing  many  of  the  attributes  of  sovereignty,  holding 
them  only  through  an  alliance.  The  plan  of  1754, 
though  not  adopted,  was  that  of  a  general  government, 
and  had  a  strong  executive.  The  articles  of  confeder- 
ation, though  reverting  back  to  the  form  of  a  confeder- 
acy, greatly  increased,  in  theory,  the  powers  of  govern- 
ment: For  example,  it  superadded  to  the  powers  of  for- 
mer Congresses,  those  of  emitting  bills  of  credit,  estab- 
lishing Marine  Courts,  and  judging  between  the  states. 
Under  this  confederation,  the  United  States,  by  the 
peace  of  1783,  achieved  their  separate  and  independent 


% 

36  ORIGIN   OF   THE 

existence  as  a  nation.  Yet,  we  have  already  seen,  it 
was  found  insufficient  for  the  purposes  of  a  stable  go- 
vernment, and  how,  in  1787,  the  present  Constitution 
was  formed  and  adopted. 

§  27-  In  this  chapter  we  have  established  these  pro- 
positions : — 

1st.  That  the  idea  of  a  union  of  the  colonies  origin- 
ated in  the  very  earliest  stage  of  their  existence. 

2d.  That  their  idea  was  that  of  a  government  exer- 
cised for  the  general  welfare,  and  founded  upon  a  rep- 
resentation of  the  people. 

3d.  That  for  this  purpose  they  from  time    to  time^^ 
formed  leagues  and  confederacies. 

4th.  That  these  associations  were  made  closer  and^ 
stronger,  as  time  and  experience  progressed. 

5th.  Lastly,  that  they  were  all  merged  in  the  "more 
perfect  union"  and  general  government  formed  by  the 
Convention  of  1787. 


CONSTITUTION    OF    THE    UNITED    STATES.  37 


CHAPTER  II. 


CONSTITUTION  OF  THE  UNITED  STATES. 


PREAMBLE. 

$28.  We,  the  Peoplfe  of  the  United  States,  in  order  to 
form  a  more  perfect  union,  establish  justice,  ensure  domes- 
tic tranquillity,  provide  for  the  common  defence,  promote 
the  general  welfare,  and  secure  the  blessings  of  liberty  to 
ourselves  and  our  posterity,  do  ordain  and  establish  this 
Constitution  for  the  United  States  of  America. 

§  29.  In  this  preamble  are  asserted, — 1st,  the  power 
making  the  Constitution,  "We  the  People,"  &c;  2dly, 
the  object  for  which  it  was  formed,  the  more  perfect 
union,  general  welfare,  &c;  3dly,  the  subject  of  it, 
the  United  States. 

$  30.  The  first  position,  that  "We  the  People  do  or- 
dain," &c,  is  the  foundation  of  the  most  solemn  inquiry 
which  ever  agitated  the  American  people, — whether 
this  phrase  be  a  mere  nullity,  or  whether  the  Constitu- 
tion was  indeed  formed  by  the  whole  people! 

$  31.  It  is  one  of  the  rules1  for  interpreting  laws,  that 
they  must  be  understood  according  to  the  context,  i.  e. 
the  whole  must  be  taken  in  connexion.  This  passage 
will,  therefore,  be  better  understood  when  we  have  re- 
viewed the  entire  Constitution.  The  preamble  throws 
light  upon  the  instrument,  and  the  instrument  upon  the 
preamble.  It  is  sufficient  to  remark  here,  that  the 
terms  used  are  in  perfect  accordance  with  the  mode 
by  which  the  Constitution  was  ratified :  this  was  by  con- 
ventions2 of  the  people,  and  not  by  the  legislatures  of 

»  Blackstone's  Coram.  59.  »  2  Pitkin's  Civil  Hist.  p.  264. 

4 


38  CONSTITUTION   OF 

the  states.  On  the  other  hand,  the  convention1  which 
formed  the  Constitution  was  composed  of  delegates  cho- 
sen by  the  state  Legislatures.  The  necessary'  infer- 
ence is,  that  the  states,  in  their  official  capacity,  pro- 
posed the  Constitution,  and  the  people,  by  ratifying  it, 
gave  it  authority:  it  is  therefore  a  government  founded 
by  separate  states,  but  receiving  its  sanction  and  validity 
from  the  whole  people. 

§  32.  2d.  The  objects  proposed  are  exactly  consist- 
ent with  this  idea.  A  perfect  union,  and  a  government 
legislating  for  the  general  welfare,  are  incompatible 
with  separate  and  independent  sovereignties.  The  terms 
independence  and  sovereignty,  used  in  relation  to  mat- 
ters of  government  and  politics,  must  of  course  be  un- 
derstood in  a  political  sense,  and  according  to  our  defi- 
nition. There  "are  some  common  acceptations  of  these 
terms  in  which  a  much  lower  importance  is  attached  to 
sovereignty.  Thus,  a  man  may  be  perfectly  sovereign 
in  his  own  house,  and  yet  be  subject  to  the  laws  of  so- 
ciety. An  animal  may  be  utterly  independent  of  an- 
other animal,  and  yet  a  member  of,  and  subject  to  the 
laws  of,  the  animal  kingdom.  In  this  sense  the  states, 
considered  as  composing  a  society,  are  sovereign  and 
independent  in  their  domestic  and  municipal  relations. 
These  terms,  in  their  political  sense,  have  a  higher 
meaning:  as  applied  to  nations,  independence  does  not 
admit  of  a  close  union,  nor  sovereignty  of  another  go- 
vernment legislating  for  the  general  welfare, 

THE  CONSTITUTION. 

$  33.  The  Constitution  of  the  United  States  contains 
seven  articles, — to  which  were  added  several  miscella- 
neous amendments. 

Article  1st.  Relates  to  the  Legislative  Power. 

Article  2d.  To  the  Executive  Power. 

Article  3d.  To  the  Judicial  Power. 
»  Pitkin's  Civil  Hist.  p.  219. 


THE    UNITED    STATES.  39 

Article  4th.  To  the  validity  of  Public  Acts  and  Re- 
cords,— the  rights  of  Citizenship, — the  admission  of 
new  States, — and  the  forms  of  State  Governments. 

Article  5th.  Relates  to  the  mode  of  amending  the 
Constitution. 

Article  6th.  To  the  national  faith  and  the  binding 
force  of  the  Constitution. 

Article  7th.  To  the    mode  of  its  ratification. 

$  34.  That  we  may  have  an  accurate  view  of  the 
Constitution,  not  merely^  as  it  is  written,  but  as  it  has 
been  construed,  and  acted  upon  by  the  various  depart- 
ments of  the  government,  we  shall  take  these  Articles 
up  by  sections,  and  consider  them  in  connexion  with 
judicial  and  other  decisions  upon  them. 

ARTICLE  I. 

5  35.  Section  1st.  All  legislative  powers  herein 
granted  shall  be  vested  in  a  Congress  of  the  United 
States,  which  shall  consist  of  a  Senate  and  House  of 
Representatives. 

]  36.  Whenever  power  is  vested  in  a  representative 
body,  it  is  usually  divided  between  a  body  of  direct  rep- 
resentatives and  one  more  remote  and  differently  con- 
stituted. Thus,  in  Great  Britain,  the  legislative  power 
is  vested  in  the  Commons  and  the  House  of  Peers;  so 
also  in  France,  the  House  of  Deputies  and  the  Peers; 
so  also  the  legislative  power  of  the  several  states  is 
similarly  vested  in  two  houses.  The  provision  is  a 
wise  one,  in  rendering  measures  less  precipitate,  and  in 
removing  one  portion  of  the  Legislature  from  the  im- 
mediate action  of  popular  passion,  while  it  retains  it 
within  the  ultimate  influence  of  the  people. 

$  37.  Section  2d.  First  clause.  The  House  of  Rep- 
resentatives shall  be  composed  of  members  chosen  every 
second  year  by  the  people  of  the  several  states;  and  the 
electors  in  each  state  shaU  have  the  qualifications  requisite 


40  CONSTITUTION    OF 

for  electors  of  the  most  numerous  branch  of  the  state 
Legislature. 

§  38.  About  the  frequency  of  elections  there  has  been 
much  dispute.  In  England,  the  period  for  which  a  re- 
presentative is  chosen  is  seven  years ;  in  some  of  the 
states  it  is  two,  and  in  some  only  six  months.  In  the 
Constitution  it  is  fixed  at  two  years,  as  being  a  period 
sufficiently  long  to  give  the  people  some  time  for  reflec- 
tion, and  yet  sufficiently  short  to  secure  the  responsibility 
of  the  representative. 

As  the  electors  of  the  different  state  Legislatures  varied 
materially,  it  was  thought  proper  that  the  representatives 
from  each  state  should  be  chosen  by  the  people,  in  the 
manner  they  had  appointed  for  the  choice  of  their  own 
legislature. 

§  39.  2d  clause.  No  person  shall  be  a  representative 
who  shall  not  have  attained  to  the  age  of  twenty-five  years, 
and  been  seven  years  a  citizen  of  the  United  States,  and 
who  shall  not,  when  elected,  be  an  inhabitant  of  that  state 
in  which  he  shall  be  chosen. 

§  40.  The  propriety  of  requiring  a  seven  years'  citizen- 
ship cannot  be  doubted;  aliens  cannot  be  regarded  as  a 
part  of  the  nation ;  and  length  of  time,  as  well  as  natu- 
ralization is  required,  to  make  them  acquainted  with  the 
interests  of  the  country. 

§  41.  A  representative  must  be  an  inhabitant  of  the 
state  from  which  he  is  chosen.  In  respect  to  this  provi- 
sion, a  question  has  arisen,  whether  a  man  residing  at  the 
seat  of  government  in  his  official  capacity  ceases  to  be  a 
legal  inhabitant  of  the  state  of  which  he  was  a  citizen? 
It  was  decided  in  the  case  of  Mr.  John  Bailey,1  a  repre- 
sentative from  Norfolk  district,  Massachusetts,  who  had 
for  several  years  been  a  clerk  in  the  department  of  State, 
that  an  official  residence  in  the  District  of  Columbia  did 
take  away  his  qualifications  as  a  citizen  of  tho 
state  whence  he  came.  This  decision  will  probably  be 
reversed.  l  See  Journals  of  Congress. 


THE    UNITED    STATES.  41 

Mr.Bailey,  however,  returned  to  Massachusetts,  and 
within  five  months  was  re-elected  and  admitted  to  his 
seat.     The  point  is,  therefore,  undecided. 

§42.  3d  clause.  Representatives  and  direct  taxes 
shall  be  apportioned  among  the  several  states  which  may 
be  included  within  this  Union,  according  to  their  respective 
numbers,  which  shall  be  determined  by  adding  to  the  whole 
number  of  free  persons,  including  those  bound  to  service 
for  a  term  of  years,  and  excluding  Indians  not  taxed, 
three-ffths  of  all  other  persons.  The  actual  enumeration 
shall  be  made  within  three  years  after  the  first  meeting 
of  the  Congress  of  the  United  States,  and  within  every 
subsequent  term  of  ten  years,  in  such  a  manner  as  they 
shall  by  law  direct.  The  number  of  representatives  shall 
not  exceed  one  for  every  thirty  thousand,  but  each  state 
shall  have  at  least  one  representative;  and  until  such 
enumeration  shall  be  made,  the  state  of  New-Hampshire 
shall  be  entitled  to  choose  three;  Massachusetts, t  eight, 
Rhode  Island  and  Providence  Plantations,  one;  Con- 
necticut, five ;  New-York,  six;  New-Jersey,  four ;  Pennsyl- 
vania,eight;  Delaware,  one;  Maryland,  six;  Virginia, ten, 
North  Carolina,  five;  South  Carolina,  Jive;  and  Georgia, 
three. 

§43.  It  is  to  be  observed,  that  the  representative  po- 
pulation is  not  the  whole  population  of  the  United  States; 
after  including  "all  free  persons,"  "excluding  Indians 
not  taxed,"  it  includes  "three-fifths  of  all  other  persons." 
The  other  persons  here  mentioned  are  slaves,  and  conse- 
quently the  states  holding  slaves  have  a  representation 
for  three-fifths  of  the  whole  number :  thus,  in  some  of  the 
states,  the  slaves  exceed  the  whites  in  number,  and  as. 
these  slaves  exercise  no  political  privileges  themselves, 
it  follows  that  their-  masters  hold  double  the  political 
power  held  by  the  citizens  of  the  non-slave-holding  states. 
Of  this,  however,  they  do  not,  and  ought  not  to  complain, 
as  it  was  the  necessary  result  of  the  compromise,  without 


42  CONSTITUTION    OF 

which  it  is  probable  the  Union  could  never  have  been 
formed. 

5  44.  It  is  said  that  the  electors  must  be  the  same  as 
those  for  "  the  most  numerous  branch  of  the  state  Legis 
lature."  Some  of  these  electors,  as  in  New-Jersey, 
North  and  South  Carolinas,  must  have  a,  property  quali- 
fication, and  others  again  come  in  under  universal  suf- 
frage; hence  the  qualifications  for  electors  are  not 
uniform. 

§  45.  The  mode  of  electing  representatives  to  Con- 
gress is  not  the  same  in  the  several  states.  Thus,  in 
some,  it  is  by  general  ticket,  as  in  Connecticut1  and 
New-Jersey:  in  others,  by  the  district  system,  as  in  New- 
York  and  Pennsylvania. 

§  46.  Under  this  section  has  arisen  a  question  in  respect 
to  the  mode  of  apportioning  representatives.  Congress 
passed  a  law,2  giving  a  number  of  representatives  equal 
to  the  whole  population  of  the  United  States,  divided  by 
30,000.  This  gave  a  larger  number  than  would  arise 
by  dividing  the  population  of  the  respective  states  by 
the  same  number,  and  adding  together  the  quotients. 
The  additional  members  were  given  to  the  states  having 
the  largest  fractions.  This  principle  was  objected  toby 
General  Washington,  who  was  then  President,  and  the 
bill  returned  with  his  reasons.  The  objection  was,  that 
the  Constitution  required  that  the  representation  should 
be  apportioned  among  \\\q  several  states,  and  not  accord- 
ing to  the  whole  population  of  the  Union.  The  bill  was 
returned  to  Congress,  the  matter  again  discussed,  and 
the  objectionable  feature  struck  out.  The  same  prin- 
ciple came  up  under  the  census  of  1830.3  The  House 
of  Representatives  passed  the  apportionment  bill  in  the 
usual  form,  and  the  Senate  inserted  a  provision,  making 
the  number  for  a  single  representative  a  divisor  of  the 
whole  representative  population  of  the  United  States, 

1  Connecticut  is  now  Districted.  2  Pitkin's  Civil  Hist.  351. 

3  Journals  of  Congress,  1832 


THE    UNITED    STATES.  43 

and  giving  a  representative  to  the  largest  fraction.  The 
House  would  not  agree  to  the  principle,  and  the  Senate 
finally  receded  from  their  ground.  It  may  therefore  be 
now  considered  as  a  settled  construction  of  the  Consti- 
tution, that  the  ratio  of  representation  must  be  a  common 
divisor  of  the  numbers  in  the  several  states,  and  not  in 
the  whole  Union. 

§  47.  This  section  likewise  requires,  that  an  enume- 
ration should  be  taken  every  ten  years  of  the  inhabitants 
of  the  United  States.  This  commenced  in  1790,  by  Act 
of  Congress,  and  has  been  continued  ever  since.  The 
ratio  of  representation  has  been  altered  at  each  census. 
The  ratio,  that  is,  the  common  divisor,  or  number  which 
is  entitled  to  a  representative,  has  been  constantly  in- 
creasing, but  the  increase  being  in  a  less  proportion  than 
that  of  the  population,  the  number  of  representatives  has 
likewise  increased.1 

§  48.  Clause  4th.  When  vacancies  happen  in  the 
representation  from  any  state,  the  executive  authority 
thereof  shall  issue  writs  of  election  to  fill  up  such  vacan- 
cies. 

\  49.  The  necessity  for  this  clause  frequently  arises, 
by  virtue  of  the  death  or  resignation  of  members  of 
Congress.  In  some  states,  as  in  Massachusetts  and 
Vermont,  repeated  elections  have  to  be  held  before  a 
choice  can  be  made,  in  consequence  of  a  majority  of  the 
votes  being  required  to  elect. 

§50.  5th  clause.  The  House  of  Representatives  shall 
choose  their  Speaker,  and  other  officers,  and  shall  have 
the  sole  power  of  impeachment. 

5  51.  The  power  of  impeachment  is  one  of  the  most 
important  under  the  Constitution.  It  is  the  only  mode  in 
which   the  Judiciary  is  made  responsible,  and  it  is  a 

1  In  1790,  the  ratio  was  33,000,  and  the  number  of  Representatives 
106.  In  1800,  the  same  ratio,  but  140  members.  In  1810,  ratio  35,000, 
members  181.  In  1820,  ratio  40,000,  members  210.  In  1830,  ratio 
47,700,  members  240. 


44  CONSTITUTION    OF 

salutary  and  necessary  check  upon  the  President  and 
his  officers. 

§  52.  The  most  prominent  examples  of  impeachment 
under  the  Constitution  are  those  of  Judges  Chase  and 
Peck.1  In  March,  1804,  the  House  of  Representatives, 
by  resolution,  impeached  Samuel  Chase, — one  of  the 
Judges  of  the  Supreme  Court, — of  malversation,  im- 
proper and  arbitrary  conduct  in  office.  In  1830,  they 
did  the  same  in  relation  to  James  H.  Peck,  District 
Judge  for  the  state  of  Missouri.  They  were  both  ac- 
quitted. 

§  53-  The  mode  of  impeachment  is  this:  the  House 
pass  a  resolution  to  impeach,  and  then  appoint  a  committee 
to  manage  the  impeachment,  and  prepare  the  articles; 
articles  making  a  plain  statement  of  the  case,  in  the 
manner,  but  with  less  formality  than  an  indictment,  are 
then  adopted  by  the  House.  The  Senate  are  then 
officially  informed  that  such  charges  are  preferred  by 
the  House,  and  resolve,  that  on  a  given  day  the  Senate 
will  sit  as  a  Court  of  Impeachment.  In  the  meantime, 
a  summons  to  appear  and  answer  is  served  upon  the 
party,  and  as  many  subpoenas  for  witnesses  are  issued 
as  the  managers  or  the  party  accused  may  direct.  On 
the  day  appointed  for  trial,  the  appearance  or  non- 
appearance of  the  party  is  recorded,  and  at  twelve 
o'clock,  the  Secretary  of  the  Senate  administers  an  oath 
to  the  President  of  the  Senate,  that  "he  will  do  impartial 
justice,  according  to  the  Constitution  and  laws  of  the 
United  States.'"  The  same  oath  is  then  administered 
by  the  President  to  each  senator  present.  2Counsel  are 
then  heard  for  the  respective  parties;  all  motions  are 
addressed  to  the  President,  and  decisions  are  made  by 
ayes  and  nays  without  debate.  Witnesses  are  examined 
and  cross-examined,  in  the  usual  manner.  Questions* 
put  by  senators  are  reduced  to  writing,  and  put  by  the 

*  See  Journal  of  the  8th  Congress. 

8  Rules  adopted  by  the  Senate  on  the  trial  of  S.  Chase. 


THE    UNITED    STATES.  45 

President.      It  requires  two-thirds  to  make  a  convic- 
tion. 

5  54.  Section  3d.  1st  clause.  The  Senate  of  the 
United  States  shall  be  composed  of  two  senators  from  each 
state,  chosen  by  the  Legislature  thereof,  for  six  years, 
and  each  senator  shall  have  one  vote. 

§  55.  In  the  Senate  each  state  is  equally  represented. 
It  has  been  said  by  an  eminent  jurist,1  that  this  feature 
of  the  Senate,  and  the  mode  of  its  election  by  the  Legis- 
latures, are  evidences  of  the  separate  and  independent 
existence  of  the  states.  If,  by  separate  and  independent 
be  meant  any  thing  more  than  local  and  municipal  inde- 
pendence, the  truth  of  the  proposition  is  not  readily 
seen.  The-counties  of  Great  Britain  were  till  recently 
equally  represented  in  the  House  of  Commons,-  so  also 
are  the  counties  of  the  state  of  Maryland  in  the  state 
Legislature;  yet,  who  would  attribute  a  separate  exist' 
ence,  or  independent  power,  to  these  counties,  beyond 
mere  local  county  purposes?  The  very  contrary  of  this 
position,  as  it  respects  the  United  States,  is  shown  from 
the  fact,  that  the  Senate  votes,  not  by  states,  but  by 
persons:  henco,  the  members  from  a  given  state  may,  and 
often  do,  vote  on  opposite  sides  cf  a  question.  Here  the 
representation  of  the  state  is  neither  separate  nor  inde- 
pendent, but  mixed  up  with  the  whole  mass.  It  is  no 
doubt  true,  that  this  provision  was  intended  to  secure  to 
the  people  of  each  state  an  equality  of  political  power 
in  the  Senate;  but  it  no  more  proves  the  separate  exist- 
ence, independence,  or  sovereignty  of  the  states,  than  the 
government  of  Maryland  acknowledges  the  separation 
and  independence  of  its  counties.  As  to  the  election  of 
the  senators  by  the  state  Legislatures, it  is  only  the  mode  . 
by  which  the  people  of  the  state  exercise  their  power. 
In  the  same  manner,  the  counties  in  Maryland  send  an 
equal  number  of  delegates  to  a  convention,  which  con- 
vention choose  the  state  Senate;  now  the  convention  is 
»  1  Kent's  Coram.  211. 


46  CONSTITUTION    OF 

the  mere  form  through  which  the  people  express  their 
will; — it  is  no  acknowledgment  of  any  separate  authority 
in  those  counties. 

§  56.  As  it  is  provided,  that  the  senators  shall  be 
chosen  by  the  Legislatures,  it  is  settled  by  the  practice 
of  most  of  the  states,  that  they  may  be  chosen  by  joint 
ballot  of  both  houses,  voting  by  individuals,  and  not  ne- 
cessarily by  the  Legislature  in  its  official  capacity,  each 
house  having  a  negative  on  the  other. 

§  57.  2d  clause.  Immediately  after  they  shall  be 
assembled,  in  consequence  of  the  first  election,  they  shall 
be  divided,  as  equally  as  may  be,  into  three  classes.  The 
seats  of  the  senators  of  the  first  class  shall  be  vacated  at 
the  expiration  of  the  second  year,  of  the  second  class  at 
the  expiration  of  the  fourth  year,  and  of  the  third  class 
at  the  expiration  of  the  sixth  year,  so  that  one-third  may 
be  chosen  every  second  year;  and  if  vacancies  happen 
by  resignation  or  otherwise,  during  the  recess  of  the 
Legislature  of  any  state,  the  executive  thereof  may  make 
temporary  appointments,  until  the  next  meeting  of  the 
Legislature,  which  shall  then  fill  such  vacancies. 

§  58.  The  members  of  the  first  Senate  were,  in  con- 
formity to  the  Constitution,  divided  by  lot  into  three 
classes,  the  terms  of  service  of  which  expired  in  two, 
four,  and  six  years,  and  ever  since  one-third  has  been 
removed  every  second  year.  In  drawing  the  lots,  care 
was  taken  that  but  one  vacancy  should  occur  at  the  same 
time  in  the  representation  of  any  one  state. 

§  59.  It  has  been  decided1  under  this  clause,  that  the 
Governor  cannot  make  an  appointment  during  the  recess 
of  the  Legislature,  in  anticipation  of  a  vacancy.  Thus, 
the  term  of  James  Lanman,  senator  from  Connecticut, 
expired  on  the  3d  of  March,  1825.  The  President  had 
convoked  the  Senate  to  meet  on  the  4th  of  March. 
The  Legislature  of  Connecticut  did  not  meet  till  May. 

1  Gordon's  Digest  of  the  Laws  of  the  United  States,  1827 ;  Appendix, 
note  1.  / 


1 


THE    UNITED    STATES.  47 

The  Governor,  in  February,  appointed  Mr.  Lanman  to 
sit  after  the  3d  of  March.  The  Senate  decided  that  such 
an  appointment  cannot  be  constitutionally  made;  the 
vacancy  must  first  occur. 

§  60.  3d  clause.  No  person  shall  be  a  senator  wlio 
shall  not  have  attained  to  the  age  of  thirty  years,  and  been 
nine  years  a  citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  inhabitant  of  that  state  for  which 
he  shall  be  chosen. 

§61.  All  these  limitations  are  manifestly  founded 
upon  propriety.  It  is  probable  they  might  have  been 
made  still  stronger  without  injury  to  the  public  in- 
terests. 

§  62.  4th  clause.  The  Vice  President  of  the  United 
States  shall  be  President  of  the  Senate,  but  shall  have  no 
vote  unless  they  be  equally  divided. 

§  63.  Legislative  bodies  have  generally  the  power 
of  choosing  their  own  presiding  officer;  in  this  instance, 
however,  the  Constitution  conferred  the  office  of  presiding 
over  the  Senate  to  the  Vice  President ;  one  reason  may 
have  been  that  he  has  no  other  duties  to  perform,  and 
the  chair  of  the  Senate  conferred  dignity  upon  him.  The 
casting  vote  of  the  Vice  President  has  been  frequently 
given,  and  in  some  very  important  cases. 

§  64.  In  1826,1  a  question  arose  whether  the  Vice 
resident  had  the  power  of  preserving  order  independent 
f  the  rules  of  the  Senate?  The  then  Vice  President, 
Ir.  Calhoun,  decided  that  he  had  not.  In  1828,  how- 
ever, the  Senate  made  a  rule,  that  "  every  question  of 
order  shall  be  decided  by  the  President  without  debate, 
subject  to  appeal  to  the  Senate." 

§65.  5th  clause.  The  Senate  shall  choose  their  other 
officers,  and  also  a  President  pro  tempore,  in  the  absence 
of  the  Vice  President,  or  when  he  shall  exercise  the  office 
of  President  of  the  United  States. 

§  66.  The  power  of  choosing  a  President  pro  tempore, 
J  1  American  Annual  Register,  SG,  87;  3.  Idem.  99. 


48  CONSTITUTION    OF 

is  constantly  exercised,  the  Vice  President  being  fre- 
quently absent. 

§  67-  6th  clause.  The  Senate  shall  have  the  sole 
'power  to  try  all  impeachments.  When  sitting  for  that 
purpose,  they  shall  be  on  oath  or  affirmation.  When  the 
President  of  the  United  States  is  tried,  the  Chief  Justice 
shall  preside;  and  no  person  shall  be  convicted  without  the 
concurrence  of  two-thirds  of  the  members  present. 

§  63.  The  impeaching  power,  and  some  of  the  rules 
of  conducting  an  impeachment,  have  been  heretofore 
noticed.1  This  mode  of  impeachment  and  trial  under 
the  Constitution  is  derived  from  the  British  Parliament, 
where  the  Commons  have  the  sole  power  of  impeach- 
ment, and  the  House  of  Lords  the  power  of  trial.  It 
seems,  however,  to  have  been  introduced  into  the  Com- 
mon Law  from  the  customs  of  the  Germans;  among 
them,  however,  the  people  were  both  accusers  and 
judges. 

§  69.  In  the  trial  of  the  President,  the  Chief  Justice 
presides,  in  order  to  preclude  the  Vice  President,  who, 
in  case  of  a  vacancy,  succeeds  to  the  Presidency,  from 
having  any  part  in  the  creation  of  that  vacancy 

§  70.  7th  clause.  Judgment  in  case  of  impeachment 
shall  not  extend  farther  than  to  a  removal  from  office,  and 
disqualification  to  hold  and  enjoy  any  office  of  honor, 
trust,  or  proft,  under  the  United  States;  but  the.  parti 
convicted  shall,  nevertheless,  be  liable,  and  subject  t 
indictment,  trial,  judgment,  and  punishment  according  t 
law. 

In  England,  the  judgment  upon  impeachments  extends, 
not  only  to  removal  from  office,  but  to  the  whole  penalty 
attached  by  law  to  the  offence.  The  House  of  Lords 
may,  therefore,  inflict  capital  punishment,  banishment, 
or  forfeiture  of  goods,  according  to  its  discretion.2 

§  71.  In  another  place3  we  have  stated  the  mode  of 

»  Sections  51,  52,  53.  *  Com.  Digest.  Parliament,  L.  44. 

3  Section  53. 


1 


THE    UNITED    STATES.  49 

procedure  in  the  Senate  upon  the  trial  of  impeachments. 
When  the  evidence  is  gone  through,  and  the  parties  have 
been  heard,  the  Senate  proceed  to  consider  the  case, 
[f  debates  arise,  they  are  in  secret;  a  day  is  then  as- 
signed for  a  public  decision  by  yeas  and  nays.  When 
the  court  has  met,  the  question  is  propounded  by  the 
President  of  the  Senate  to  each  individual  member  by 
name :  whereupon  the  member  rises  and  answers,  guilty, 
or  not  guilty,  as  his  opinion  is.  If  upon  no  one  article  the 
party  is  found  guilty  by  two-thirds  of  the  Senate,  he  is  de- 
clared acquitted  by  the  President  of  the  Senate.  If  guilty, 
the  Senate  proceed  to  fix  and  declare  the  punishment. 

§  72.  Section  4th.  1st  clause.  The  times,  places, 
and  manner  of  holding  elections  for  senators  and  repre- 
sentatives shall  be  prescribed  in  each  state  by  the  Legis- 
lature thereof;  but  the  Congress  may,  at  any  time,  by  law, 
make  or  alter  such  regulations,  except  as  to  the  places  of 
choosing  senators. 

\  73.  Under  this  section  Congress  has  the  power  to 
appoint  the  times  and  modes  of  choosing  representatives 
and  senators.  This  power  they  have  never  exercised, 
and  the  time  and  mode  of  choosing  them  is  consequently 
very  various.  In  some  states,  as  New- York  and  Ohio, 
members  of  the  House  of  Representatives  are  chosen 
in  the  year  previous  to  the  dissolution  of  Congress;  in 
others,  as  New-Hampshire  and  Virginia,  in  the  spring 
following;  and  in  others  again,  as  in  Indiana,  in  the 
following  summer.  Congress  has,  except  on  two  occa- 
sions, met  on  or  about  the  first  Monday  in  December; 
but  suppose,  that  from  the  emergency  of  the  case,  they 
should  appoint  a  day  early  in  the  spring;  in  what  man- 
ner would  those  states  now  electing  representatives  in 
the  summer,  be  represented?  The  power  of  regulating 
the  times  and  places  of  electing  representatives,  was  thus 
given  to  Congress,  in  order  that  it  might  have  the  means 
of  its  own  preservation;  otherwise,  the  states  might 
prevent  an  election. 


50  CONSTITUTION    OF 

$  74.  2d  clause.  The  Congress  shall  assemble  at 
least  once  in  every  year;  and  such  meeting  shall  be  on 
the  first  Monday  in  December,  unless  they  shall  by  law 
appoint  a  different  day. 

$  75.  This  provision  was  inserted  in  order  to  estab- 
lish, beyond  the  possibility  of  prevention,  the  annual 
sessions  of  Congress;  the  time  of  meeting  within  the 
year  has  been  fixed,  but  Congress  may  change  it,  and 
on  two  or  three  occasions  they  have  held  extra  sessions. 

§  76.  Section  5th.  1st  clause.  Each  House  shallbe 
the  judge  of  the  elections,  returns,  and  qualifications  of 
its  own  members;  and  a  majority  of  each  shall  constitute 
a  quorum  to  do  business;  but  a  smaller  number  may  ad- 
journ from  day  to  day,  and  may  be  authorized  to  compel 
the  attendance  of  absent  members,  in  such  a  manner  and 
under  such  penalties  as  each  House  may  provide. 

§  77.  Some  number  must  be  fixed  to  constitute  a 
quorum;  it  is  here  fixed  at  a  majority,  upon  the  general 
principle  recognised  in  all  the  institutions  of  the  Uni- 
ted States,  that  the  majority  must  govern.  If  any  less 
number  were  required  to  make  a  quorum,  the  minority, 
by  acting  in  the  absence  of  the  majority,  might  govern; 
and  if  a  larger  number  were  required,  the  minority 
might  prevent  legislation  by  absenting  themselves. 

§  78.  The  House  and  Senate  regularly  appoint  com- 
mittees on  elections,  which  investigate  all  contested 
claims  to  seats,  and  all  doubtful  returns,  qualifications, 
&c.  The  committees  report  to  the  House,  which  makes 
the  ultimate  decision.  From  this  decision  there  is  no 
appeal,  and  it  is  obvious  there  ought  not  to  be,  for  the 
power  could  be  no  where  else  lodged  so  safely. 

\  79.  2d  clause.  Each  House  shall  determine  the 
rules  of  its  proceedings,  punish  its  members  for  disorder* 
ly  behavior,  and  with  the  concurrence  of  two-thirds,  ex- 
pel a  member. 

\  80-  The  rules  of  proceedings  enacted  are  numerous, 
and  will  be  considered  in  another  place. 


THE  UNITED  STATES.  51 

§  81.  The  power  to  "punish  its  members  for  elisor 
derly  behavior"  has  been  frequently  exercised.  Thus, 
in  1797,  William  Blount,  a  senator  from  Tennessee, 
was  expelled  for  "a  high  misdemeanor,  entirely  incon- 
sistent with  his  public  trust  and  duty  as  a  senator.'" 
His  offence  was  an  attempt  to  seduce  an  Indian  agent 
from  his  duty,  and  alienate  the  affections  of  the  Indians 
from  the  authorities  of  the  United  States.  The  offence 
was  not  statutable,  nor  committed  in  his  official  charac- 
ter, nor  committed  during  the  session  of  Congress,  nor 
at  the  seat  of  government.  Yet  he  was  expelled  from 
the  Senate,  and  afterward  impeached.1 

5  82-  It  is,  therefore,  settled  by  the  Senate,  that  ex- 
pulsion may  be  for  any  misdemeanor,  though  not  pun- 
ishable by  any  statute,  which  is  inconsistent  with  the 
trust  and  duty  of  a  senator. 

§  83.  Although  there  is  a  power  enumerated  given  to 
Congress  to  punish  disorderly  behavior,  yet  there  is 
none  expressly  given  to  punish  contempts.  Yet  this 
power,  being  absolutely  necessary  to  the  order  and 
security  of  the  House,  has  been  adjudged,  both  by  Con- 
gress and  the  Supreme  Court,  to  be  a  necessary  inci- 
dent to  the  powers  of  Congress. 

\  84.  This  power  was  exercised  by  the  House  of 
Representatives  in  the  case  of  Robert  Randall,  in  1795, 
for  an  attempt  to  corrupt  a  member. 

\  85.  The  same  point  was  solemnly  decided  by  the 
Supreme  Court  in  the  case  of  Anderson  vs.  Dunn.2 
One  Anderson  was  committed  for  a  contempt  of  the 
House,  and  placed  in  the  custody  of  the  sergeant-at- 
arms.  An  action  of  trespass  was  brought  against  the 
officer,  and  the  case  carried  to  the  Supreme  Court. 
That  tribunal  decided  that  the  House  had  the  power,  and 
that  it  extended  n<>  farther  than  imprisonment,  and  con- 
tinued no  longer  than  the  duration  of  the  power  that 
»  2  Story's  Comm.  299.  *  6  Wheaton,  204. 


52  CONSTITUTION    OP 

imprisoned,  and  consequently  terminated  with  the  dis- 
solution of  Congress. 

§  86.  The  same  power  was  exercised  in  1800  by  the 
Senate  in  the  case  of  William  Duane,  who  was  found 
guilty  of  a  printed  libel  on  the  Senate,  and  punished 
with  imprisonment.1  So  also  by  the  House  of  Repre- 
sentatives, in  the  case  of  Samuel  Houston,  who  assault- 
ed a  member  for  words  spoken  in  debate,  and  was  found 
guilty  of  a  contempt,  and  reprimanded.2 

§  87-  3d  clause.  Each  House  shall  keep  a  journal  of 
its  proceedings,  and  from  time  to  time  publish  the  same, 
excepting  such  parts  as  may  in  their  judgment  require 
secrecy;  and  the  yeas  and  nays  of  the  members  of  either 
House,  on  any  question,  shall,  at  the  desire  of  one-fifth  of 
those  present,  be  entered  on  the  journal. 

§  88.  The  yeas  and  nays,  being  the  means  by  which 
the  constituents  discover  the  conduct  of  their  represen- 
tatives, are  often  called  for  and  generally  granted.  No 
important  question  is  agitated  upon  which  the  yeas  and 
nays  are  not  recorded.  This  provision  is  very  impor- 
tant; for,  as  the  periods  of  elections  are  short,  the  rep- 
resentative is  constantly  held  responsible  to  the  people, 
and  there  is  no  scrutiny  which  he  dreads  more  than  that 
into  his  recorded  votes. 

§  89.  4th  clause.  Neither  House,  during  the  session 
of  Congress,  shall,  without  the  consent  of  the  other,  ad- 
journ for  more  than  three  days,  nor  to  any  other  place 
than  that  in  which  the  two  Houses  shall  be  sitting. 

§  90.  By  this  provision,  it  is  impossible  that  either 
House  should  prevent  the  progress  of  business,  and  each 
has  a  complete  negative  on  the  other. 

$  91.  Section  6th.  1st  clause.  The  Senators  and 
Representatives  shall  receive  a  compensation  for  their 
services,  to  be  ascertained  by  law,  and  paid  out  of  the 
Treasury  of  the  United  States.      They  shall  in  all  cases, 

'  Journal  of  the  Senate,  March  1800. 

*  Other  authorities— 1  Dall.  Rep.  296.  4  Johns.  Rep.  417. 


THE    UNITED    STATES.  53 

except  treason,  felony,  and  breach  of  the  peace,  be 
privileged  from  arrest  during  their  attendance  at  the 
session  of  their  respective  Houses,  and  in  going  to  or 
returning  from  the  same;  and  for  any  speech  or  debate  in 
either  House,  they  shallnot  be  questioned  in  any  other  place. 

§92.  The  compensation  allowed  by  Congress  for 
their  own  service  was,  and  is  now,  a  per  diem  allowance, 
with  mileage  for  the  distance  traveled,  going  and  return- 
ing. Congress,  several  years  since,  enacted  that  each 
member  should  receive  a  fixed  compensation;  thus,  in 
fact,  making  themselves  salary  officers.  This  was  re- 
ceived by  the  people  with  so  much  censure  and  condem- 
nation, that  the  next  Congress  was  obliged  to  repeal  the 
law. 

§93.  The  privilege  from  arrest  during  attendance 
upon  legislative  business,  is  derived  from  the  Saxon  in- 
stitutions. It  was  the  privilege  of  the  members  of  the 
Saxon  Wittenagemot,1  or  assembly  of  wise  men,  and 
thence  has  descended  through  all  the  systems  of  Eng- 
lish and  American  Law. 

§  94.  The  effect  of  this  privilege  is,  that  the  arrest  of 
a  member  is  unlawful,  and  a  trespass  for  which  he  may 
maintain  his  action.  He  may  also  be  discharged  upon 
a  writ  of  Habeas  Corpus,2  and  the  arrest  may  be  punish- 
ed as  a  contempt  of  the  House. 

§  95.  In  going  to  and  returning  from  Congress,  ample 
time  is  allowed,  and  a  little  deviation  does  not  take  away 
the  privilege. 

§  96.  The  privilege  from  arrest  takes  place  by  force 
of  the  election,  and  before  the  member  has  taken  his 
seat,  or  is  sworn. 

§  97-  This  privilege  does  not  extend  to  felony,  trea- 
son, or  breach  of  the  peace;  and  the  terms  breach  of  the 
peace  being  general,  have  been  decided  to  extend  to  all 
indictable  offences,  as  well  as  those  which  are  only  con- 
structive breaches  of  the  peace.3 

>  1  Hume,  155.    *  2  Wilson's  Rep.  151.     3  Blackst.  Coram.  166. 
5* 


54  CONSTITUTION    OF 

§  98.  The  privilege  of  speech  and  debate  does  not 
extend  beyond  the  limits  of  legislative  or  parliamentary 
duty.  Thus,  for  a  speech  merely  delivered  in  the 
House,  a  member  cannot  be  questioned;  yet,  if  he  pub- 
lish the  speech,  and  it  contain  a  libel,  he  is  liable  to  an 
action  for  it,  as  in  any  other  case.1 

§  99.  2d  clause.  No  Senator  or  Representative  shall, 
during  the  time  for  which  he  was  elected,  be  appointed 
to  any  civil  office  under  the  authority  of  the  United 
States  which  shall  have  been  created,  or  the  emoluments 
whereof  shall  have  been  increased,  during  such  time, 
and  no  person  holding  any  office  under  the  United 
States  shall  be  a  member  of  either  House  during  his  con- 
tinuance in  office. 

§  100.  The  first  part  of  this  clause  was  inserted  as 
a  safeguard  against  venality;  yet  were  there  really 
any  danger  from  such  a  source  of  corruption,  it  would 
not  seem  to  be  prevented  by  this  provision,  for  it  extends 
only  "during  such  time," — the  time  for  which  he  was 
elected,  which  is  so  short  as  to  leave  the  full  force  of 
promised  reward  beyond  it. 

§  101.  The  second  provision,  which  prevents  office- 
holders from  holding  a  seat  in  Congress,  is  very  unlike 
the  Constitution  of  the  British  Parliament,  by  which  any 
member  of  the  ministry  may  hold  a  seat  in  the  House  of 
Commons.  By  this  means  there  is  certainly  a  degree 
of  responsibility  on  the  part  of  the  ministry,  which  is  un- 
felt  by  the  executive  officers  of  our  government,  who  com- 
municate with  congress  only  through  the  details  of  a 
report,  or  the  columns  of  a  newspaper.  The  provision 
was  inserted,  however,  for  the  purpose  of  preventing 
an  undue  influence  of  the  government  upon  the  action 
of  Congress. 

§  102.  Section  7th.  Clause  1st.  All  bills  for  rais- 
ing revenue  shall  originate  in  the  House  of  Representa 
»  1  Maule  and  Selwyn's  Rep.  273. 


THE    UNITED    STATES.  55 

ilvcs,  but  the  Senate  may  propose  or  concur  with  amend- 
ments, as  on  other  bills. 

§  103-  This  provision  is  borrowed  from  the  British 
Constitution,  where  the  Commons,  or  Lower  House,  are 
the  exclusive  representatives  of  the  people.  In  the 
United  States  it  has  been  continued,  in  consequence  of 
the  Senators  being  rather  the  representatives  of  the 
state  governments  than  of  the  people. 

§  104.  Bills  for  raising  revenue  do  not  include  every 
[ill  which  brings  money  into  the  treasury;  for,  bills  for 
establishing  the  Post-office,  and  the  Mint,  originated  in 
the  Senate;  so  also  bills  for  the  sale  of  public  lands, 
though  directly  productive  of  money,  are  not  included 
in  this  phrase :  its  proper  meaning  is  confined  to  bills  to 
levy  taxes. 

§  105-  2d  clause.  Every  bill  which  shall  have  passed 
the  House  of  Representatives  and  the  Senate  shall,  before 
it  become  a  law,  be  presented  to  the  President  of  the  United 
States;  if  he  approve,  he  shall  sign  it;  but  if  not,  he 
shall  return  it  with  his  objections  to  that  House  in  which 
it  shall  have  originated,  who  shall  enter  the  objections  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If, 
after  such  reconsideration,  two-thirds  of  that  House  shall 
agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the 
objections,  to  the  other  House,  by  which  it  shall  likewise  be 
reconsidered,  and  if  approved  by  two-thirds  of  that  House 
it  shall  become  a  law.  But,  in  all  such  cases,  the  votes  of 
both  Houses  shall  be  determined  by  yeas  and  nays,  and  the 
names  of  the  persons  voting  for  and  against  the  bill  shall 
be  entered  on  the  journal  of  each  House  respectively.  If 
any  bill  shall  not  be  returned  by  the  President  within  ten 
days  (Sundays  excepted)  afterit  shall  have  been  presented 
to  him,  the  same  shall  be  a  laic,  in  like  manner  as  if  he 
had  signed  it,  unless  the  Congress  by  their  adjournment 
prevent  its  return,  in  which  case  it  shall  not  be  a  law. 

§  106.  The  power  of  the   President   to  return   bills 
with  his  objections  has  been  repeatedly  exercised.     It 


i>Q  CONSTITUTION    OP 

was  exercised,  we  have  seen,  by  General  Washington, 
in  respect  to  the  bill  fixing  the  ratio  of  representation; 
by  President  Monroe,  in  1817,  on  the  Internal  Improve- 
ment Bill ;  by  President  Jackson  on  the  Maysville  road, 
the  United  States  Bank,  and  in  other  cases. 

§  1 07.  This  power,  and  the  mode  of  its  exercise,  are 
so  clearly  defined  by  the  Constitution  as  to  admit  of  lit- 
tle doubt  or  misconception.  If  the  President  abuse  the 
Veto,  it  is  presumed  the  representatives  of  the  people 
will  pass  the  bill  in  question,  by  the  constitutional  ma- 
jority of  two-thirds. 

§  108.  If  a  bill  be  not  presented  to  the  President  more 
than  ten  daysbefore  the  end  of  the  session,  the  President 
has  it  in  his  power  to  defeat  it,  by  simply  withholding 
his  signature,  for  he  is  obliged  to  return  it  with  objec- 
tions (if  he  has  any)  only  within  ten  days;  of  course,  if 
Congress  by  adjournment  prevent  that  return  within 
that  time,  the  bill  must  fail,  if  not  signed  by  the  Presi- 
dent. 

§  109.  3d  clause.  Every  order,  resolution,  or  vote 
to  which  the  concurrence  of  the  Senate  and  House  of 
Representatives  may  be  necessary  (except  on  a  question 
of  adjournment),  shall  be  presented  to  the  President  of 
the  United  States,  and  before  the  same  shall  take  effect, 
shall  be  approved  by  him,  or,  being  disapproved  by  him, 
shall  be  repassed  by  two-thirds  of  the  Senate  and  House 
of  Representatives,  according  to  the  rules  and  limita- 
tions prescribed  in  the  case  of  a  bill. 

§  110.  The  "order,  resolution,  or  vote"  to  which  the 
President's  signature  is,  by  this  section,  required,  are 
riot  those  orders,  resolutions,  and  votes  which  relate  to 
the  separate  and  internal  government  of  each  House 
Rules  of  order,  resolutions  in  respect  to  their  own  con- 
duct, judgments  upon  their  own  elections,  votes  of  cen- 
sure and  thanks,  being  matters  exclusively  relating  to 
themselves,  do  not  come  within  the  scope  of  this  pro- 
vision. 


THE    UNITED    STATES  57 

$  111.  Section  8th.  Clause  1st.  The  Congress 
shall  have  power  to  lay  and  collect  taxes,  duties,  imposts, 
and  excises;  to  pay  the  debts  and  provide  for  the  com- 
mon defence  and  general  welfare  of  the  United  States; 
but  all  duties,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States: 

§  1 1 2.  This  clause,  divided  by  the  semicolon,  does 
not  confer  upon  Congress  two  separate  powers,  one  "  to 
lay  and  collect  taxes,"  &.c.  and  the  other  to  "provide 
for  the  general  welfare;"  but  it  is  the  grant  of  one  pow- 
er, viz.  "  to  lay  and  collect  taxes,"  &c. — limited  by  the 
object,  which  is  for  the  purpose  of  "  providing  for  the 
general  welfare."1 

§  113.  Taxes  are  of  two  kinds, — direct  and  indirect. 
Direct  taxes  are  all  burdens  imposed  immediately  upon 
the  person  or  estate  of  the  citizen;  thus,  a  tax  upon 
houses,  lands,  money,  &,c.  is  a  direct  tax :  indirect  taxes 
are  the  burdens  imposed  upon  articles  of  consumption, 
and  chiefly  upon  imported  articles;  thus,  the  revenue, 
or  duty  levied  upon  each  yard  of  broadcloth,  or  cotton 
sheeting,  brought  to  this  country  from  abroad,  is  an 
indirect  tax. 

§  114.  Indirect  taxes  increase  the  price  of  imported 
articles,  and  thus  act  as  a  burden  upon  those  who  pur- 
chase them.  The  difference  between  the  two  modes  of 
taxation  is  this :  direct  taxes  act  directly  upon  the  person 
and  property  of  the  citizen,  and  is  independent  of  his 
will;  indirect  taxes,  by  being  imposed  upon  articles 
imported  from  foreign  countries,  or  used  in  consumption, 
leave  the  people  at  liberty  to  pay  them  or  not,  by  using 
or  not  using  the  articles  upon  which  they  are  imposed. 
Thus,  a  farmer  cannot  avoid  the  payment  of  a  tax  levied 
upon  his  land,  but  he  may  avoid  the  payment  of  the 
duty  upon  coffee,  by  not  using  it.     And  previous  to  the 

Ueffersor.'s  Opinion  on  the  Bank  of  the  United  States,  1791 ;  Mon- 
roe's Message,  May,  1822;  Hamilton's  Report,  Dec.  1791 ;  9  Whea- 
ton's  Rep.  199. 


58  CONSTITUTION    OF 

Revolution,  such  was  the  fact,  as  we  all  know,  in  rela- 
tion to  the  duty  upon  tea.  The  people,  by  a  patriotic 
impulse  and  common  consent,  abstained  from  the  use  of 
tea,  and  thus  prevented  the  levying  of  the  duty. 

§  115.  In  genera],  all  the  necessaries  of  life,  such  as 
coarse  clothing,  bread,  meat,  fruit,  wood,  and  iron,  are 
the  productions  of  our  own  country,- — so  that  the  whole 
import  duty,  or  nearly  the  whole  revenue  of  the  country, 
as  now  levied,  is  a  mere  matter  of  voluntary  contribu- 
tion upon  the  part  of  each  and  every  citizen;  hence  it 
is  that  indirect  taxes,  being  in  a  measure  unfelt  and  vol- 
untary, are  comparatively  popular,  while  direct  taxes 
are  more  or  less  odious. 

§  116.  The  terms  imposts  and  duties,  as  now  used, 
are  nearly  synonymous;1  but  originally,  the  word  duty 
had  a  general  signification,  as  it  respects  taxes,  of  which 
imposts  was  a  particular  application.  Now  they  are 
applied  indiscriminately  to  the  revenue  obtained  from 
imported  articles. 

§  117.  The  term  excise  is  defined  to  be  a  duty  on 
commodities,  but  of  late  it  has  been  confined  to  a  tax  on 
domestic  distilled  liquors.  In  this  sense  it  is  a  tax,  not 
only  on  the  productions  of  the  country,  but  also  a  tax  on 
the  manufacture  of  them :  it  is  a  tax,  at  once,  upon  the 
raw  material  and  the  labor  put  upon  it.  Such  a  double 
duty,  it  is  obvious,  could  never  be  imposed  by  the  Legis- 
lature, nor  borne  by  any  people,  but  from  a  conviction 
in  a  large  portion  of  the  community,  of  the  disastrous 
influence  of  spirituous  liquors,  and  a  strong  desire  to  re- 
press their  use.  Even  with  this  conviction  among  the 
intelligent,  an  excise  duty  has  never  been  imposed  but 
in  time  of  great  public  emergency,  and  then  at  the  risk 
of  civil  war.  In  the  year  1793,  Congress  laid  an  ex- 
cise duty  on  distilled  spirits,  and  appointed  inspectors, 
officers,  &c.  to  collect  it.  This  law  became  so  exces- 
sively odious  to  a  portion  of  the  people,  that  notwith- 
*  Madison's  Letter  on  the  Tariff. 


THE  tJNITED  STATES.  59 

standing  the  unrivalled  popularity  and  commanding  in- 
fluence of  General  Washington,  who  was  then  Presi- 
dent, they  were  excited,  especially  in  the  neighborhood 
of  Pittsburgh,  Pennsylvania,  into  open  acts  of  violence. 
The  inspectors  were  attacked  in  their  houses,  the  mails 
robbed,  the  marshal  resisted,  and  numerous  other  out- 
rages, amounting  to  open  insurrection,  were  committed.1 
At  length,  the  President  called  out  the  militia,  and  by 
the  display  of  superior  force,  and  the  determination  to 
use  it,  quelled  the  insurgents.  In  this  brief  history,  we 
see  the  effect  of  excise  duties,  of  which  the  chief  cause, 
next  to  the  appetite  for  spirituous  liquors,  may  be  found 
in  the  onerous  nature  of  a  tax  both  upon  labor  and  pro- 
duction. 

§  118.  But  all  duties,  imposts,  and  excises,  must  be 
uniform.  In  the  case  of  Hylton  vs.  United  States,2  the 
Supreme  Court  decided  that  a  duty  levied  indiscrimi- 
nately upon  all  carriages  was  not  a  direct  tax,  and  was 
therefore  properly  laid,  and  uniform.  Had  it  been  a 
direct  tax,  it  must,  according  to  a  previous  provision  of 
the  Constitution,  (§  42),  have  been  apportioned  in  pro- 
portion to  the  population  of  the  several  states. 

§  119.  In  the  case  of  Loughborough  vs.  Blake,3  the 
court  decided  that  the.  power  of  Congress  to  tax  exten- 
ded over  the' District  of  Columbia,  and  all  other  terri- 
tories; that  the  power  of  taxation  was  co-extensive  with 
the  government,  but  that  when  exercised,  direct  taxes 
must  be  in  proportion  to  the  population.  The  court 
decided  that  Congress  were  not  obliged  to  extend  taxa- 
tion to  the  territories,  although  when  they  did  so,  the 
Constitution  gave  a  rule  of  assessment. 

§  1 20.  2cl  clause.  To  borrow  money  on  the  credit  of 
the  United  States: 

This  power  has  been  constantly  exercised,  and  for 
the  plain   reason   that  no   state   or   government  could 

»  5  Marshall's  Washington,  585.  2  3  Dallas,  171. 

3  5  Wheaton,  317. 


50  CONSTITUTION    OF 

subsist  without  it.  Every  war,  especially  under  a  fru- 
gal and  economical  government  like  ours,  imposes  upon 
the  government  the  necessity  for  greater  revenues  than 
the  ordinary  taxes  can  supply;  the  consequence  is  a 
national  debt.  But  the  same  simplicity  and  frugality 
which  keep  the  revenue  below  the  lavish  demands  of 
war,  furnish  the  means  of  speedily  extinguishing  the 
debts  which  result  from  it.  Thus,  in  our  country,  the 
year  1816  found  the  nation  more  than  1 20  millions  in 
debt;  the  year  1834, — 18  years  afterward, — found  it 
not  only  out  of  debt,  but  its  statesmen  actually  contend- 
ing about  the  surplus  revenue! 

§  121.  Clause  3d.  To  regulate  commerce  with  foreign 
nations  and  among  the  several  states,  and  with  the  Indian 
tribes: 

§  1 22.  The  power  given  in  this  paragraph  has  been 
the  origin  of  many  important  legislative  provisions,  of 
which  some  have  given  rise  to  judicial  decisions,  and 
others  to  frequent  and  severe  political  discussions.  In 
a  very  celebrated  case,  Gibbons  vs.  Ogden,1  arising 
under  the  Steamboat  Laws  of  New-York,  the  Supreme 
Court  of  the  United  States  have  solemnly  decided  the 
meaning  of  the  phrase  to  regulate  commerce. 

§  123.  The  term  commerce,  in  that  decision,  is  deci- 
ded to  comprehend  navigation,  and  the  power  to  regu- 
late navigation  is  as  expressly  given  as  if  it  had  been 
added  to  the  word  commerce. 

§  124-  The  power  to  regulate  commerce  extends  to 
every  species  of  commercial  intercourse  between  the 
United  States  and  foreign  nations,  and  among  the  sev- 
eral states.  Bat  it  does  not  comprehend  that  com- 
merce which  is  internal,  as  between  man  and  man,  and 
between  different  parts  of  the  same  state.  It  does' not, 
however,  stop  at  the  jurisdictional  lines  of  the  several 
states,  but  extends  wherever  the  subject  of  it  exists. 

§  125.   The    power   to    regulate   commerce    is    the 

i  9  Wheaton,  189,  193. 


THE    UNITED    STATES.  gj 

power  to  prescribe  the  rule  by  which  commerce  is  to  be 
governed. 

§  126.  The  power  to  regulate  commerce  extends  as 
well  to  vessels  employed  in  carrying  passengers  as  to 
those  in  transporting  goods,  to  vessels  navigated  by  fire 
and  steam  as  to  those  by  sails. 

§  127.  The  law  regulating  the  coasting  trade,  in 
relation  to  which  these  decisions  were  made,  was 
passed  in  February,  1793.  From  that  day  to  this, 
Congress  have  been  in  the  constant  exercise  of  the 
power  to  regulate  commerce.  They  have  passed  laws 
to  regulate  commerce,  as  such,  to  lay  embargoes,  navi- 
gation acts,  &»c. 

§  128.  By  the  Embargo  Act,  December,  1807?  a 
prohibition  was  laid  of  exportation  from  the  United 
States,  either  by  land  or  water,  of  any  goods  or  wares, 
either  foreign  or  domestic.  In  the  case  of  the  United 
States  against  the  Brigantine  William,1  this  act  was 
controverted,  as  unconstitutional:  but  the  court  decided 
that  the  embargo  act  was  constitutional;  that  non- 
intercourse  and  embargo  laws  are  within  the  range 
of  legislative  discretion ;  and  that  the  power  of  Congress 
was  sovereign  relative  to  commercial  intercourse. 

§  129.  Within  a  few  years,  another  question  has 
arisen  under  the  power  to  regulate  commerce.  Political 
zeal  and  party  spirit  have  originated  an  idea,  which  cer- 
tainly, so  far  as  authentic  history  goes,  never  entered 
into  the  heads  of  the  framers  of  the  Constitution.  This 
notion  is,  that  a  law  imposing  duties  for  the  protection 
of  domestic  manufactures  is  not  constitutional.  It  is  ad- 
mitted, that  any  amount  of  imposts  and  duties  may  be 
levied  upon  any  articles  for  the  purpose  of  revenue,  and 
that  the  protection  arising  from  this  impost,  being  inci- 
dental, is  constitutional, — but  that  these  same  imposts 
being  imposed  for  protection  so  called,  are  not  constitu- 
tional.    This  is  in  reality  a  distinction  without  a  differ- 

i  2  Hall's  Law  Journal.  255. 


62  CONSTITUTION    OF 

ence;  for,  according  to  the  theory  itself,  Congress,  with- 
out transcending  their  powers,  may  levy  the  whole 
revenue  from  particular  articles,  and  thus  create  not 
only  a  protection  against,  but  an  absolute  prohibition  of 
them.  But,  suppose  the  bill  was  enacted  for  protection 
merely,  and  let  us  examine  briefly  the  principles  and 
authorities  applicable  to  it.  It  is  neither  necessary  nor 
proper  here  to  enter  into  a  detailed  argument  upon  the 
subject,  but  the  matter  may  be  stated  in  a  few  propo- 
sitions with  sufficient  force  to  make  the  conclusion 
irresistible. 

§  130.  The  avowed  objects  of  the  Constitution,  as  ex- 
pressed in  the  preamble,  are  to  provide  for  the  common 
defence,  and  promote  the  general  welfare  ;  for  this  pur- 
pose various  means  are  provided,  and  among  others  the 
express  power  given  "  to  lay  imposts,  duties,  and  ex- 
cises, to  provide  for  the  common  defence,  and  promote 
the  general  welfare."  Now,  it  is  perfectly  apparent, 
that  neither  of  these  provisions  can  be  carried  into 
effect  without  such  discriminating  duties  as  will  encou- 
rage and  protect  the  domestic  manufacture  of  the  muni- 
tions of  war,  and  of  necessary  clothing. 

§  131.  The  power  to  regulate  commerce  includes 
every  thing  in  relation  not  only  to  the  mode  of  carrying 
it  on,  but  also  to  the  terms  upon  which  it  shall  be  carried 
on.1  Those  terms,  therefore,  may  be  arranged  either  for 
the  purpose  of  raising  revenue  or  protecting  manu- 
factures, as  suits  the  legislator.  The  government  has 
a  discretion,  which  it  may  exercise  as  it  pleases. 

§  1 32.  The  meaning  of  the  phrase,  to  regulate  trade> 
must  be  gathered  from  the  use  of  it  among  commercial 
people,  and  the  manner  in  which  it  was  understood  by 
those  who  used  it  in  making  and  adopting  the  Constitu- 
tion.2 In  both  these  cases- it  was  understood  to  include 
the  encouragement  of  manufactures. 

§  133.  The  Supreme  Court  is  vested  with  power  to 

1  Madison's  Letter  on  the  Tariff.  *  Ibid. 


THE    UNITED    STATES.  63 

decide  on  the  constitutionality  of  all  laws  :  this  point  has 
not  been  directly  before  them,  but  they  may  be  consid- 
ered as  having  decided  it  upon  principle,  by  the  appli- 
cation of  certain  rules  which  they  have  laid  down. 

§  134.  The  court  have  decided1  that  the  power  to 
regulate  commerce  is  the  power  to  prescribe  the  rule  by 
which  commerce  shall  be  governed; 

§  135.  That,  like  all  other  powers  vested  in  Con- 
gress, it  is  complete  in  itself,  and  has  no  other  limits 
than  such  as  are  prescribed  in  the  Constitution; 

§  136.  That  the  power  to  regulate  implies  in  its  na- 
ture full  power  over  the  thing  to  be  regulated. 

§  1 37-  Now,  if  Congress  have  power  to  tax  all  arti- 
cles in  all  modes  (as  they  have,  under  the  clause  to  lay 
duties,  imposts,  Sic),  and  have  besides  the  power  to 
regulate  commerce  without  limitation  as  to  the  subject 
matter,  then  it  is  impossible  to  avoid  the  conclusion,  that 
they  have  the  power  to  make  any  discrimination  whatev- 
er, in  the  duties  to  be  levied,  no  matter  for  what  purpose, 
whether  of  revenue  or  protection,  is  answered  thereby. 

§  138.  But  if  anything  were  wanting  to  make  con- 
viction perfect,  it  would  be  found  in  the  uniform  practice 
of  the  government,  whether  administered  by  those  who 
jvere  co-laborators  in  its  formation,  or  by  those  who 
grew  up  under  it  from  the  adoption  of  the  Constitution 
to  the  present  day;  in  the  opinions  often  expressed,  of 
the  wisest  and  most  distinguished  statesmen;  and  final- 
ly, in  the  admissions  of  the  ablest  opponents  of  the  pro- 
tective policy. 

§  1 39.  The  power  to  regulate  commerce  is  exclusive 
in  the  general  government.3  The  full  power  to  regu- 
late a  particular  subject  implies  the  whole  power,  and 
leaves  no  residuum.  A  grant  of  a  power  to  regulate 
necessarily  excludes  the  action  of  all  others,  who  would 
perform  the  same  thing. 

1  Gibbons  vs.  Ogden,  9  Wheaton,  189. 
*B*own  vs.  Maryland,  12  Wheaton,  419,  445. 


64  CONSTITUTION    OF 

§  140-  The  power  to  regulate  trade  and  commerce 
extends  to  the  coasting  trade  and  fisheries,  within  or 
without  a  state,  wherever  it  is  connected  with  other 
states,  or  with  foreign  nations ;  it  extends  to  the 
regulation  and  government  of  American  seamen  on 
board  of  American  ships,  and  to  conferring  privi 
leges  upon  American  ships  in  domestic  as  well  as  foreign 
trade.1 

§  141.  It  extends  also  to  quarantine,  pilotage,  and 
salvage  laws ;  to  the  construction  of  light-houses;  to  the 
removal  of  obstructions  in  creeks,  harbours,  and  sounds ; 
and  to  the  establishment  of  ports  of  entry  for  the  pur- 
poses of  foreign  commerce. 

§  142.  These  powers  have  all  been  exercised  in  the 
enactment  and  enforcement  of  various  laws  regulating 
the  collection  of  the  revenue,  the  government  of  sea- 
men, the  mode  of  navigation,  and  the  improvement  of 
harbours. 

§  143.  This  section  of  the  Constitution  contains  also 
the  power,  which  has  been  often  exercised,  of  regulat- 
ing intercourse  with  the  Indian  tribes.  The  Supreme 
Court  have  decided2  that  Congress  have  the  exclusive 
right  of  pre-emption  to  all  the  Indian  lands  within  the 
territories  of  the  United  States.  This  right"  the  United 
States  have  constantly  exercised;  neither  the  states 
nor  any  individuals  are  allowed  to  purchase  lands  from 
the  Indians. 

§  144-  In  the  case  of  the  Cherokee  Nation  vs.  Geor- 
gia,' it  was  decided  that  a  tribe,  situated  within  the  ter 
ritorial  limits  of  a  state,  but  exercising  the  powers  of 
government  and  national  sovereignty,  under  the  guaran 
tee  of  the  general  government,  is  not  a  foreign  state  in 
the  sense  of  the  Constitution;  but  is  entitled  to  sue  in 
the  courts  of  the  United  States.  Such  a  tribe  is  to  be 
deemed  politically  a  state,  that  is,  a  distinct  political  so- 

i  2  Story's  Comra.  518.  2  2  Wheaton,  543 ;  6  Cranch,  142. 

»  5  Peters'  R.  1, 16,  17.     9  Wheaton,  203,  209. 


THE    UNITED    STATES.  65 

ciety,  but  is  not  a  foreign  state.1  It  is  a  domestic  de- 
pendent nation,  and  is  to  be  deemed  in  a  state  of  pupil- 
age. Its  relation  to  the  United  States  is  that  of  a  ward 
to  a  guardian. 

§  145.  As  it  respects  foreign  nations,  the  Indian 
tribes  within  the  limits  of  the  United  States  are  con- 
sidered as  completely  within  the  control  and  protection 
of  the  United  States;  so  that  the  interference  of  any 
foreign  nation  with  those  Indian  tribes,  or  an  attempt 
to  seduce  their  good-will  from  the  United  States,  would 
be  considered  as  a  cause  of  war. 

§  146.  4th  clause.  To  establish  a  uniform  rule  of 
naturalization,  and  uniform  laws  on  the  subject  of  bank- 
ruptcies throughout  the  United  States. 

§  147-  This  provision  vests  the  power  of  naturaliza- 
tion exclusively  in  the  United  States.2  In  pursuance 
of  this  power,  Congress  have  passed  a  series  of  laws 
prescribing  the  mode  of  naturalization.  Of  the  classes 
of  persons  who  may  come  under  these  provisions  there 
are  three, — 1st,  Aliens  of  full  age;  2d,  Aliens,  minors; 
3d,  Children  of  citizens  born  in  foreign  countries. 

§  148.  ~ist.  The  laws  provide3  that  any  alien  of  full 
age  shall  be  admitted  to  citizenship  in  the  following  man- 
ner. 1st.  He  shall  declare  on  oath,  or  affirmation,  be- 
fore any  court  of  record,  having  common  law  jurisdic- 
tion, a  seal  and  a  clerk,  in  any  state  or  territory,  or  a 
circuit  or  district  court  of  the  United  States,  or  before 
the  clerks  thereof,  two  years  at  least  before  his  admis- 
sion, that  it  is  bona  fide  his  intention  to  become  a  citi- 
zen of  the  United  States,  and  renounce  for  ever  all  alle- 
giance to  any  foreign  prince  or  state  of  which  he  may  at 
the  time  be  a  citizen  or  subject.  2d,  That  he  shall,  at 
the  time  of  his  application  to  be  admitted,  declare  on 
oath,  before  the  aforesaid  courts,  that  he  will  support  the 

i  Worcester  vs.  Georgia,  6  Peters,  559.         *  2  Wheaton,  259,  269. 
»  Act  of  April,  1802,  as  amended  by  the  acts  of  1804,  1813,  1816, 
1824,  and  1S28. 
G* 


66  CONSTITUTION    OF 

Constitution  of  the  United  States,  and  does  absolutely 
renounce  and  abjure  all  allegiance  to  any  foreign  prince 
or  state  whatever;  and  particularly  that  prince  or  state 
whereof  he  was  before  a  citizen  or  subject,  which  pro- 
ceeding shall  be  recorded  by  the  clerk  of  the  court. 
3d,  That  the  court  admitting  such  alien  shall  be  satis- 
fied that  he  had  resided  within  the  United  States  the 
continued  term  of  Jive  years  next  preceding  his  admission, 
without  being  during  that  time  out  of  the  United  States, 
and  one  year  at  least  within  the  state  or  territory  where 
such  court  is  held;  and  that,  during  that  time,  he  has 
behaved  as  a  man  of  good  moral  character,  attached  to 
the  principles  of  the  Constitution,  and  well  disposed  to 
the  good  of  the  same, — provided  the  oath  of  the  ap- 
plicant shall  not  be  allowed  to  prove  his  residence. 
4th,  That  if  the  alien  applying  to  be  admitted  shall  have 
borne  any  hereditary  title,  or  been  of  any  of  the  orders 
of  nobility  in  the  kingdom  or  state  whence  he  came,  he 
shall,  in  addition  to  those  requisites,  expressly  renounce 
his  title  or  order  of  nobility,  in  the  court  to  which  his 
application  shall  be  made,  and  it  shall  be  recorded; 
provided,  no  alien  who  shall  be  a  citizen  or  subject  of 
any  country  at  war  with  the  United  States  at  the  time 
of  his  application,  shall  be  admitted  as  a  citizen  of  the 
United  States. 

§  149.  2d.  Free  white  minors,1  who  have  resided  in 
the  United  States  three  years  next  preceding  their  arrival 
at  twenty-one  years,  and  who  shall  have  continued  to  re- 
side therein  till  the  time  they  may  make  application,  may, 
after  their  arrival  at  twenty-one  years  of  age,  and  after 
they  shall  have  resided  in  the  country  five  years,  within 
the  United  States,  including  three  years  of  their  minority, 
be  admitted  without  having  made  the  declaration  first  re- 
quired ;  provided  they  shall  make  such  declaration  at  the 
time  of  their  admission,  and  shall  further  declare  on  oath, 
and  prove  to  the  satisfaction  of  the  court,  that  for  three 
i  Act  of  May,  1824: 


THE    UNITED    STATES.  (37 

years  next  preceding,  it  has  been  the  bona  fide  intention 
of  such  alien  to  become  a  citizen  of  the  United  States, 
and  shall  otherwise  comply  with  the  laws  lelative  to 
naturalization. 

§  150.  The  children  of  naturalized  persons,  or  of 
those  who  have  become  citizens  previous  to  the  passage 
of  any  law  upon  the  subject,  and  were  under  twenty- 
one  at  the  time  of  their  parents'  admission  to  citizen- 
ship, shall,  if  dwelling  in  the  United  States,  be  consid- 
ered citizens  of  the  United  States. 

§151.  3d.  The  children  of  those  who  now  are  or  have 
been  citizens  of  the  United  States  shall,  though  born  out 
of  the  limits  and  jurisdiction  of  the  United  States,  be 
considered  as  citizens;  provided  the  children  of  those 
who  have  never  resided  within  the  United  States  shall 
not  be  so  considered. 

§  152.  And  it  is  further  provided,1  that  if  an  alien 
make  the  declaration  in  the  first  condition,  and  pursue 
the  other  requisitions  as  far  as  may  be,  and  die  before 
he  is  actually  naturalized,  the  widow  and  children  shall 
be  considered  as  citizens,  and  entitled  to  all  the  rights  ot 
citizens,  upon  taking  the  oaths  prescribed  by  law. 

§  153.  An  alien  is,  by  the  Common  Law,2  without 
power  to  hold  real  estate.  Several  of  the  western 
states,  as  Ohio,  &>c,  have  abrogated  this  part  of  the 
common  law  by  statute,  for  the  encouragement  of  emi- 
gration. 

§  1 54-  The  power  to  pass  a  general  Bankrupt  Law  is, 
by  this  section,  vested  in  Congress.  This  power  was 
once  exercised  by  Congress  in  April,  1800;  but  the  law 
was  repealed  in  1803.  Many  efforts  have  been  made 
since  to  obtain  from  Congress  a  general  Bankrupt  Law ; 
but,  in  consequence  of  a  disagreement  upon  the  details, 
none  has  been  passed.  The  several  states  have  fre- 
quently passed  Insolvent  Laws ;  but  as  another  part  of 
the  Constitution,  of  which  we  shall  speak  hereafter,  ren- 
»  Act  of  March,  1804.  a  2  Blackstone's  Comm.  249,  293. 


68  CONSTITUTION    OF  / 

ders  all  acts  impairing  the  obligations  of  contracts  void, 
there  has  been  much  doubt  as  to  the  constitutionality 
and  effect  of  these  laws. 

§  155.  The  Supreme  Court  have  now  determined,  by 
a  series  of  decisions  the  following  points  :l 

1st.  That  State  Insolvent  Laws  cannot  discharge  the 
obligation  of  antecedent  contracts; 

2d.  That  the  power  of  Congress  to  pass  Bankrupt 
Laws  is  not  an  exclusive  grant, •  it  may,  therefore,  be  ex- 
ercised within  constitutional  limits  by  the  states; 

3d.  That  a  state  may  pass  valid  laws  discharging  the 
person  of  the  debtor  and  his  after-acquired  property 
from  debts  contracted  after  the  passing  such  law; 

4th.  That  such  a  discharge  is  valid  only  between  the 
citizens  of  the  state  by  which  the  law  was  passed; 

5th.  That  the  Insolvent  Law  of  one  state  does  not  dis- 
charge the  debtor  from  debts  which  he  has  incurred  in 
another  state. 

§  156.  5th  clause.  To  coin  money,  regulate  the  value 
thereof,  and  of  foreign  coin,  and  fix  the  standard  of 
weights  and  measures. 

§  157.  The  power  conferred  by  this  paragraph  has 
been  long  and  efficiently  exercised,  so  that  the  Ameri- 
can coinage  has  supplied  much  of  the  currency  of  the 
country,  and  holds  a  high  rank  among  foreign  nations. 
The  Mint  of  the  United  States  is  an  office,  with 
the  proper  officers,  created  by  Congress  in  1792,2  and 
has  been  in  operation  ever  since.  Every  person  may 
bring  gold  and  silver  to  the  mint  to  be  coined,  and  if  it 
is  of  the  standard  value,  is  assayed  and  coined  free  of 
expense;  but  if  below  the  standard,  enough  is  retained 
to  pay  the  expense  of  coinage.  The  coinage  of  the 
United  States  is  entirely  decimal,  and,  therefore,  in  prac- 
tice, more  convenient  than  that  of  any  other  nation. 
Thus,  the  Spanish  milled  dollar  is  taken  as  the  unit, 

»4  Wheaton's  R.  122;  12  Wheaton's  R.  273.        *Act  of  April 
1792. 


THE    UNITED    STATES.  69 

and  all  smaller  coin  is  in  tenth  parts  of  that,  and  all  gold 
coin  in  tens  above;  as  the  dime  is  the  tenth  part  of  a 
dollar,  and  the  eagle  ten  dollars.  That  part  of  this 
clause  which  relates  to  the  standard  of  weights  and 
measures,  has  never  been  acted  upon, — although  nothing 
could  conduce  more  to  the  accuracy  of  trade,  or  the 
convenience  of  commerce.  Several  elaborate,  and  sci- 
entific treatises  have  been  produced  upon  the  subject, 
for  the  information  of  Congress,  among  which  is  the  able 
Report  of  Mr.  J.  Q.  Adams.  In  the  meantime,  the  pow- 
er is  sometimes  exercised  by  the  states. 

§158.  6th  clause.  To  provide  for  the  punishment  of 
counterfeiting  the  securities  and  current  coin  of  the  United 
States; 

Congress  have  exercised  this  power  by  making  the 
crime  of  counterfeiting  a  felony,  punishable  by  impris- 
onment, fine,  &lc.  This  power  is  consequential  to  the 
preceding, — that  of  coining  money  and  regulating  its 
value. 

§  159.  7th  clause.  To  establish  Post-offices  and 
J*ost-roads; 

The  establishment  of  Post-offices  and  Post-roads 
has  existed  since,  and  before  the  organization  of  the 
present  government.  Being  a  branch  of  public  admin- 
istration co-existent  with  commerce,  social  intercourse, 
and  the  diffusion  of  knowledge,  it  has  grown  with  the 
increase  of  the  general  prosperity,  and  has  become, 
from  small  beginnings,  an  immense  and  complicated 
machinery.  In  1848  the  number  of  Post-offices  was  16,000, 
and  the  number  of  miles  in  Post-roads  152,865  ;  and  this 
number  is  constantly  increasing. 

§  160  To  establish  Post-roads  and  Post-offices 
means  simply  to  make  any  given  road  a  post-route^  and 
appoint  in  any  given  place  a  post-master.  The  routes 
are  established  by  act  of  Congress,  but  it  is  the  duty  of  the 
postmaster-general    to   appoint   postmasters  at  all   such 

l  Act  of  April,  1806. 


70  CONSTITUTION    OF 

places  as  he  may  judge  best,  and  expedite  the  mail  as 
frequently,  on  established  routes,  as  the  public  interest 
may  require. 

§  161.  The  power  to  establish  Post-offices  and 
Post-roads  being  given,  the  consequential  powers  neces- 
sary to  carry  it  into  execution  are  likewise  given;  as, 
for  example,  the  power  to  secure  the  safety  and  speedy 
transportation  of  the  mail.1  Congress  have  accordingly 
made  the  robbery  of  the  mail  a  felony,  and  prohibited, 
under  high  penalties,  the  obstruction  of  the  mail?  Under 
this  act  the  Supreme  Court2  have  decided,  that  even  a 
stolen  horse,  found  in  the  mail  stage,  could  not  be 
seized,  and  that  the  driver  could  not  be  arrested  on  civil 
process  in  such  a  way  as  to  obstruct  the  mail.  But 
it  was  subsequently  decided,  that  this  was  not  to  be 
carried  so  far  as  to  endanger  the  public  peace  by  inter- 
fering with  criminal  process.1  Thus,  a  felon  may  be  ar- 
rested in  the  mail  stage,  or  the  driver,  if  he  had  commit- 
ted murder. 

§  162.  Under  the  power  to  establish  Post-roads  has 
arisen  the  question  of  Internal  Improvements.  Though 
much  agitated,  it  is  not  settled,  and  I  shall  give  here 
merely  the  different  authorities  upon  the  subject,  whether 
Legislative,  Executive,  or  Judicial. 

§  163.  1st.  Of  the  Legislative  opinions  upon  the  sub- 
ject. By  the  Act  of  March  3d,  1 803,  Congress  con- 
cluded a  compact  with  the  state  of  Ohio,  by  which 
three  per  cent,  of  all  the  moneys  derived  from  the  sale 
of  public  lands  within  the  State  of  Ohio  were  reserved 
for  the  construction  of  roads  within  that  state.  The 
consideration  was,  that  the  lands  of  the  United  States  in 
that  state  should  not  be  taxed.  Whether  by  inadver- 
tence or  intention,  this  act  clearly  acknowledged  the 
power  of  the  general  government  to  make  Internal  Im- 
provements j   for  the   appropriation  was   made   by  the 

»Act  of  April,  1810.  3  3  Hall's  Law  Journal. 

*1  Peters' Rep.  390. 


THE    UNITED    STATES.  71 

United  States,  and  the  funds  were  derived  from  the  prop- 
erty of  the  United  States.  It  could  be  no  objection  to 
this  reasoning  that  the  work  was  to  be  done  by  the 
state;  for  it  is  an  established  principle,  that  "he  who 
acts  by  another,  acts  by  himself."  Neither  is  it  an  ar- 
gument to  say  there  was  a  consideration ;  for,  "  what 
one  cannot  do  directly  he  cannot  do  indirectly."  This 
was  so  understood  by  Congress,  for  in  several  subse» 
quent  acts  they  authorized  the  construction  of  roads 
within  the  North-west  Territory. 

§  164-  The  next  step  taken  by  Congress1  was  the 
construction  of  the  Cumberland  Road.  This  road  was 
commenced  in  1 806,  and  in  a  few  years  finished  from 
Cumberland,  on  the  Potomac,  to  Wheeling,  on  the  Ohio. 
In  1820,  Congress  resumed  the  construction  from  Wheel- 
ing westward,  and  it  is  now  in  progress  through  the 
western  states.  This  work  was  undertaken  on  the 
ground  of  the  compact  with  Ohio.  By  the  terms  of  a 
compact  made  between  that  state  and  the  United  States, 
Jive  per  cent,  of  all  the  moneys  arising  from  the  sale  of 
public  lands  within  that  state  were  to  be  applied  to  the 
making  of  roads  "leading  from  the  navigabfe  waters  of 
the  Atlantic  to  the  Ohio."  This,  however,  falls  within 
the  same  principles  already  stated,  in  reference  to  the 
three  per  cent,  fund;  and  as  the  sum  drawn  from  the 
reserved  funds  was  soon  greatly  exceeded,  the  work  has 
since  been  conducted  simply  on  the  ground  of  internal 
improvement. 

§  165.  The  next  act2  was  the  opening  of  the  roaa 
from  Athens,  in  Georgia,  to  New-Orleans,  and  from 
Nashville  to  Natchez.  In  1 809,  the  Canal  of  Car-onde- 
let3  was  extended  to  the  Mississippi  by  the  general 
government. 

§  166.  In  1811,  Congress  directed4  the  survey  and 
making  of  two   roads, — one    from    the   Rapids    of  tho 

i  Act  of  March,  1806.  *  Act  of  April,  1806. 

3  Act  of  February,  18Q0  *  Act  of  December,  1811. 


72  CONSTITUTION    OF 

Maumee  to  the  Western    Reserve,  and  another  from 
Sandusky  to  the  Greenville  Line. 

§  167.  By  several  successive  acts  in  1812,  1816, 
1817j  and  1818,  Congress  confirmed  their  former  de- 
cisions, by  making  surveys  of,  and  authorizing  the  con- 
struction of  roads  ;  till  it  would  seem  that,  practically, 
there  was  no  doubt  in  the  National  Legislature  upon  the 
subject.  The  matter  has,  however,  been  several  times 
tested  by  the  interposition  of  the  Executive  Veto. 

§  168.  A  bill  to  set  apart  a  portion  of  the  bank  bonus 
and  dividends  for  the  purpose  of  Internal  Improvement 
was  passed  in  1817?  and  returned  by  Mr.  Madison, 
who  denied  the  power  of  Congress  to  construct  roads 
and  canals,  or  improve  water-courses.  The  House  of 
Representatives,  however,  re-affirmed  their  power  by  a 
vote  of  sixty  to  fifty-six. 

§  169.  At  the  succeeding  session,  Mr.  Monroe,  in  his 
message,  also  denied  the  constitutional  power  of  Con- 
gress to  make  Internal  Improvements.  The  House  soon 
after  passed  a  resolution,  ninety  to  seventy-five,  declar- 
ing that  Congress,  under  the  Constitution,  had  power  to 
construct  roads  and  improve  water-courses. 

§  170.  From  this  period  Internal  Improvement  seem- 
ed the  settled  policy  of  the  government  for  several  years. 
In  1822,  Mr.  Monroe,  indeed,  interposed  his  veto  on 
the  bill  providing  for  the  Collection  of  Tolls  on  the 
Cumberland  road;  but,  the  objection  was  not  to  the 
power  of  making  roads,  but  to  the  Collection  of  Tolls 
upon  it,  as  being  inconsistent  with  the  jurisdiction  and 
sovereignty  of  the  soil.  This,  however,  was  not  deemed 
an  impediment  to  the  construction  of  public  works,  for 
Congress  immediately  took  measures  to  organize  a  sys- 
tem of  surveys  and  reports,  in  relation  to  such  roads  and 
canals  as  the  public  interest  might  require;  and  in  April, 
1824,  what  is  called  the  Survey  Bill  became  a  law. 
It  appropriated  $30,000  for  the  purpose  of  making  sur- 
veys of  different  parts  of  the  country,  and  authorized 


/ 

THE    UNITED    STATES.  73 

the  employment  of  the  Engineer  Corps  in  that  service. 
Soon  after  the  passage  of  this  bill,  the  accession  of  a 
new  administration,  decidedly  favorable  to  Internal  Im- 
provement, gave  the  system  a  new  impulse,  and  from 
that  time  forward  Congress  enacted  many  laws  affirming 
and  enlarging  these  powers.  They  subscribed  a  large 
amount  of  stock  to  the  Ohio  and  Chesapeake  Canal, 
to  the '  Dismal  Swamp  Canal,  and  the  Louisville  and 
Portland  Canal.  They  made  appropriations  for  the 
improvement  of  numerous  harbours,  rivers,  &,c.  &c, — 
for  the  making  of  Military  Roads, — for  the  continuance 
of  the  Cumberland  Road,  and  various  other  public 
works.  A  practical  check  was  given  to  this  system  by 
President  Jackson,  in  his  veto  on  the  Maysville  Road 
Bill,  of  which  I  shall  speak  hereafter.  Congress,  how- 
ever, remained  unchanged.  By  the  passage  of  the 
Harbour  Bills,  and  numerous  other  items  for  roads  and 
improvements  in  other  bills,  they  have  manifested  a 
fixed  opinion  in  favor  of  their  power  to  construct  roads 
and  other  public  works. 

§  171-  The  result  deduced  from  this  Legislative 
History  is,  that  Congress  have  uniformly  asserted  their 
power,  under  the  Constitution,  to  construct  and  hold, 
with  the  public  funds,  public  works,  under  the  denomi- 
nation of  Internal  Improvements.  We  shall  now  exam- 
ine the  opinion  of  another  branch  of  the  government. 

§  172.  2d.  Of  the  Executive  opinions.  During  the 
administration  of  Washington  and  the  elder  Adams,  the 
power  of  Congress  in  respect  to  Internal  Improvements 
was  neither  exercised  nor  much  examined,  and  there- 
fore no  executive  opinions  were  formally  advanced 
Under  the  administration  of  Mr.  Jefferson,  we  have 
already  seen  the  compact  was  made  with  Ohio,  and  the 
Cumberland  Road  undertaken.  To  both  these  acts 
Mr.  Jefferson  gave  his  assent,  and  it  is  difficult  to  see 
in  what  respect  these  works  differ  from  other  public  im- 
provements j  yet,  by  his  message  of  December  2d,  1 806j 
7 


74  CONSTITUTION    OP 

he  denied  the  power  of  Congress  to  make  roads  and  im- 
prove water-courses,  though  he  earnestly  recommended 
the  grant  of  such  powers  by  the  states.  The  reason 
given  was,  that  this  power  was  not  enumerated  among 
the  powers  of  Congress.  The  authority  of  Mr.  Jeffer- 
son, therefore,  may  be  considered  as  decidedly  against 
the  power  to  make  internal  improvements,  though  he 
was  most  earnestly  in  favor  of  granting  such  a  power 
to  the  government. 

§  173-  Mr.  Madison,  in  1796,  spoke  in  favor  of  a 
resolution  relative  to  a  survey  of  a  road  from  Maine  to 
Georgia;  yet,  in  1815,  in  his  Message  to  Congress, 
while  strongly  recommending  to  Congress  "  the  great 
importance  of  establishing  throughout  our  country  the 
roads  and  canals  which  can  best  be  executed  under 
national  authority,"  intimated  that  any  defect  in  the  con- 
stitutional potter  might  be  supplied  in  the  mode  provi- 
ded by  the  Constitution. 

In  1817,  Mr.  Madison  placed  his  Veto  upon  the  bill 
providing  means  for  the  construction  of  roads  and 
canals,  and  the  improvement  of  water-courses.  He  de- 
nied the  constitutional  power  of  Congress  to  make  such 
works,  and  thus  gave  his  judgment  also  in  the  negative. 

§  174.  In  Mr.  Monroe's  first  message  to  Congress,1 
he  declared  his  agreement  with  his  predecessors,  and 
doubt  of  the  constitutionality  of  such  works.  After  the 
passage  of  the  Resolution  of  Congress,  in  1818,  affirm- 
ing the  power,  he  is  understood  to  have  withdrawn  his 
opposition,  and  during  his  administration,  appropriations 
for  such  purposes  greatly  increased.  In  1 822,  however, 
he  placed  his  veto7  upon  the  act  for  the  erection  of  Toll- 
gates  and  the  collection  of  Tolls  on  the  Cumberland 
Road.  This  he  considered  as  requiring  the  juris- 
diction and  sovereignty  of  the  soil,  which  the  general 
government  did  not  possess. 

§  175.  Mr.  John  Quincy   Adams    strongly   recom 
»  December,  1817.  *  May,  1822. 


THE    UMTED    STATES.  75 

mended  and  encouraged  Internal  Improvements.  Dur- 
ing his  administration,  the  system  seemed  to  have  be- 
come "a  part  of  the  permanent  policy  of  the  country. 
Numerous  surveys  were  completed,  and  large  sums  ap- 
propriated for  various  public  works. 

§  176.  General  Jackson,  while  a  member  of  the 
Senate,  is  understood  to  have  had  no  constitutional 
scruples  upon  the  subject;  but,  by  his  veto  upon  tho 
well-known  Maysville  Road  Bill,1  he  gave  his  influence 
in  the  negative.  In  whatever  manner  this  document 
may  be  judged  of,  during  the  heat  of  temporary  party 
controversies,  there  can  be  no  doubt  that  it  contains  a 
temperate  and  judicious  review  of  the  question,  and  a 
correct  decision  upon  the  particular  point  submitted  to 
him.  That  point  was,  the  propriety  of  constructing  by 
the  general  government  a  local  road  entirely  within  one 
state.  There  is  no  doubt  that  if  the  power  of  making 
Internal  Improvements  exist  in  the  general  government, 
it  must  be  confined  to  national,  not  local  objects. 
General  Jackson,  however,  went  further  than  this,  and 
deemed  that  all  the  power  which  had  been  uninterrup- 
tedly exercised  upon  this  subject,  viz.  that  of  appropri- 
ating money,  was  insufficient  and  unsafe  for  the  success- 
ful prosecution  of  national  works.  He  regarded  it, 
notwithstanding  the  usage  was  admitted,  as  improper  to 
exercise  powers  not  granted,  and  which  might  easily  be 
conferred. 

§  177-  Since  this  message,  the  Executive  influence 
has  been  altogether  opposed  to  Internal  Improvements, 
and  they  have  made  little  progress. 

§  178.  We  have  now  seen  that  the  opinions  of 
Presidents  Jefferson,  Madison,  Monroe,  and  Jackson 
were  opposed  upon  constitutional  grounds  to  the  exer- 
cise of  such  a  power  by  the  general  government;  but 
that  all  of  them,  except  the  latter,  were  in  favor  of  the 
measures  themselves,  and  under  all  their  administra- 
»  Message,  27lh  May,  1830. 


76  CONSTITUTION    OF 

tions,  except  also  the  last,  many  national  works  were 
undertaken.  President  Adams  alone  conceded  both  the 
theory  and  practice. 

The  conclusion  of  the  whole  then  is,  that  the  weight 
of  Legislative  authority  has  been  uniformly  in  favor  of 
the  power,  while  that  of  Executive  authority  has  been 
against  it. 

§  179.  3d.  Of  Judicial  opinions  we  have  none  ex- 
cept general  decisions  upon  the  indirect  powers  of  Con 
gress. 

The  Supreme  Court  decided,  that  a  contemporary 
exposition  of  the  Constitution  practised,  and  acquiesced 
in  for  a  number  of  years,  fixes  the  construction  of  the 
Constitution,  and  the  court  will  not  shake  or  alter  it.1 
Also,  that  there  is  nothing  in  the  Constitution  of  the 
United  States  which  excludes  incidental  or  implied 
powers.2 

The  two  principles  here  cited  might  be  considered  as 
showing  an  inclination  in  the  Supreme  Court  to  sustain 
the  power  claimed  by  Congress.  Yet,  as  it  may  be  long 
before  the  question  will  come  before  that  tribunal,  it 
may  be  considered  as  open  to  discussion. 

§  1 80.  Clause  8th.  To  promote  the  progress  of  sci- 
ence and  the  useful  arts,  by  securing,  for  limited  times, 
to  authors  and  inventors,  the  exclusive  right  to  their 
respective  writings  and  discoveries: 

§  181.  In  England  it  was  solemnly  decided,3  that  an 
author  had,  by  Common  Law  as  well  as  by  Statute,  an 
exclusive  right  to  his  own  works.  In  this  country, 
Copy-rights  and  Patent-rights  are  derived  from  Acts  of 
Congress,  founded  on  this  provision  of  the  Constitution 

§  182.  The  acts4  relative  to  Patents,  direct  that 
"Patents  may  be  obtained  for  any  new  and  useful  art, 
machine,  manufacture,  or  composition  of  matter  not 
known  before  the  application."      The  term  for  which  a 

» 1  Cranch,  299.        2  4  Wheaton,  316.        3  4  Burrows'  Rep.  2303. 
«  Acts  of  February,  1793,  and  April,  1800. 


THE    UNITED    STATES.  77 

Patent  may  be  obtained  is  fourteen  years.  Sacha  law 
would  seem  to  be  an  effectual  protection  to  inventors 
against  an  infringement  of  their  rights,  yet  we  may  see 
in  the  Life  of  Whitney1  of  how  little  avail  it  is  against 
the  pressing  interests  of  society.  In  Georgia,  no  jury 
could  be  found  to  give  him  a  verdict  of  damages  for  the 
open  violation  of  his  Patent  for  the  Cotton  Gin, — an 
invention  which  had  doubled  the  value  of  cotton ! 

§  183.  Copy-rights  were  formerly  secured  for  four- 
teen years;  now,  by  the  Act  of  February,  1831,  in  every 
respect  better  than  the  former,  the  term  is  prolonged  to 
twenty-eight  years,  and  at  the  expiration  of  that  time,  the 
author  (or.  if  he  be  dead),  his  wife  or  children,  may  re- 
new it  for  fourteen  years  longer. 

§  1 84.  Clause  9th.  To  constitute  tribunals  inferior 
to  the  Supreme  Court:  To  define  and  punish  piracies 
and  felonies  committed  on  the  high  seas,  and  offences 
against  the  Law  of  Nations: 

§  185-  In  another  place  we  shall  consider  what  re- 
lates to  the  Supreme  and  Inferior  Courts. 

By  the  Law  of  Nations,  and  by  the  Common  Law, 
Piracy  is  defined  to  be — robbery  on  the  high  sea,  that  is, 
the  same  crime  which,  when  committed  on  the  land,  is  de- 
nominated robbery.2  Piracy  is  against  all  nations,  and 
punished  by  all.  A  plea  which  would  be  good  in  one 
civilized  state,  would  be  good  in  all. 

An  alien  under  the  sanction  of  a  national  commission, 
cannot  commit  piracy  while  he  pursues  his  authority.3 
Hence,  the  Barbary  states  are  regarded  as  lawful  pow- 
ers, and  not  pirates. 

§  186.  Felony,  at  Common  Law,  comprises  every 
species  of  crime  which  occasions  the  forfeiture  of  lands 
and  goods.  These,  under  the  English  Law,  were  most 
crimes  punishable  with  death,  such  as  murder,  forgery, 
theft,  &c.     But  this  does  not  include  all  offences  on  the 

i  See  Silliman's  Journal.  *  Blackst.  Comm.  71, 72. 

3  1  Kent's  Comm.  176. 

v 


78  CONSTITUTION    OF 

high  seas,*  for  example,  Lord  Coke  says  that  piracy  is 
not  felony,  because  punishable  by  the  civil  and  not  the 
common  law. 

§  187-  The  High  Seas  means  all  the  waters  of  the 
ocean,  whether  within  the  territorial  boundaries  of  a 
foreign  nation  or  of  a  domestic  state- 
Between  high-water  mark  and  low-water  mark,  where 
the  tide  ebbs  and  flows,  the  Common  Law  and  the  Ad- 
miralty hold  alternate  jurisdiction,'  one  upon  the  water 
when  it  is  full  sea,  the  other  upon  the  land  when  it 
is  ebb. 

The  high  seas,  here  defined,  however,  do  not  extend 
to  creeks  and  inlets,  but,  as  it  respects  the  states,  means 
that  part  of  the  ocean  which  washes  the  sea-coast,  and 
is  not  included  within  any  county. 

§  188-  Congress,  by  various  enactments,  have  exer- 
cised the  powers  vested  in  them  by  this  section,  and 
have  affixed  various  punishments  to  the  crimes  of  trea- 
son, murder,  robbery,  piracy,  &c. 

§  189.  Congress  has  power  to  provide  for  the  pun- 
ishment of  offences  committed  by  persons  serving  on 
board  a  ship  of  war  of  the  United  States,  wherever  that 
ship  may  be:  but  Congress  has  not  exercised  that  pow- 
er in  the  case  of  a  ship  lying  in  the  waters  of  the 
United  States.2 

.  §  190.  Clause  10th.  To  declare  war,  grant  letters  of 
marque  and  reprisal,  and  malcc  rules  concerning  captures 
on  land  and  water: 

§  191.  These  powers  are  attributes  of  sovereignty; 
they  are  vested  in  the  national  government,  and  not  in 
the  states.  The  power  of  declaring  war  is  the  highest 
which  the  government  possesses,  and  involves  directly 
the  happiness  and  existence  of  the  people:  as  it  is  called 
the  last  resort  of  kings,  so  it  is  certainly  the  last  appeal 
of  nations. 

§  192.  To  grant  letters  of  marque  and  reprisal  is 
»  5  Wheaton's  Rep.  184,  200,  204.  *  3  Wheaton,  336. 


THE    UNITED    STATES.  79 

but  a  part  of  the  power  to  declare  war;  for  such  an  act 
would  unquestionably  produce  war. 

§  193.  The  power  of  "making  rules  concerning  cap- 
tures on  land  and  water,"  which  is  superadded  in  the 
Constitution  to  that  of  declaring  war,  is  not  confined  to 
captures  which  are  extra-territorial,  but  extends  to  rules 
respecting  enemies'  property  found  within  the  territory, 
and  is  an  express  grant  to  Congress  of  the  power  of 
confiscating  enemies'  property  found  within  the  territo- 
ry at  the  declaration  of  war,  as  an  independent  power, 
not  included  in  that  of  declaring  war.1 

§  194.  Clause  11th.  To  raise  and  support  armies, 
but  no  appropriation  of  money  to  that  purpose  shall  be 
for  a  longer  term  than  tiuo  years: 

§  195-  The  United  States  have  always  had  a  small 
standing  army,  to  keep  up  the  forts  on  the  sea-board  and 
awe  the  Indians.  The  provision  preventing  an  appro- 
priation for  a  longer  period  than  two  years  was  for  the 
obvious  purpose  of  keeping  the  standing  army  always 
within  the  immediate  control  of  the  people. 

§  196.  Clause  12th.  To  provide  and  maintain  a 
navy: 

This,  like  the  provision  to  maintain  an  army,  is  a  con- 
sequence of  the  general  power  to  declare  war,  and  is 
absolutely  necessary  to  national  existence.  The  United 
States  have  long  had  a  respectable  navy,  and  all  the 
provisions  necessary  to  its  organization,  support,  and 
increase,  have  been  provided  for  by  law. 

§  197-  Clause  13th.  To  make  rules  for  the  govern- 
ment and  regulation  of  the  land  and  naval  forces: 

Congress  have  established,  by  law,  rules  and  articles 
of  war  for  the  government  of  the  army,2  and  rules  and 
regulations  for  the  government  of  the  navy.8  These 
rules  provide  for  the  discipline  of  the  service,  the  mode 
of  trial,  and  the  punishment  for  offences.  The  rules 
and  articles  of  war  must  be  read  at  the  head  of  each 
»  8  Cranch,  1 10.         2  Act  of  April,  180G.         3  Act  of  April,  1800. 


80  CONSTITUTION   OF 

corps  every  six  months,  and  are  to  govern  as  well  the 
militia  in  service  as  the  regulars,  but  the  militia  are  to 
be  tried  by  their  own  officers. 

§  198.  Whatever  crimes  are  committed  on  board  of 
public  ships  of  war  of  the  United  States,  whether  in  port 
or  at  sea,  are  exclusively  cognizable  and  punishable  by 
the  government  of  the  United  States.1  The  public  ships 
of  sovereigns,  wherever  they  may  be,  are  deemed  to  be 
extra-territorial,  and  enjoy  the  immunities  from  the 
local  jurisdiction  belonging  to  their  sovereign.2 

§  199-  Clause  14th.  To  provide  for  calling  forth  the 
militia  to  execute  the  laws  of  the  Union,  suppress  insur- 
rections, and  repel  invasions: 

Clause  1 5th.  To  provide  for  organizing,  arming,  and 
disciplining  the  militia,  and  for  governing  such  part  of 
them  as  may  be  employed  in  the  service  of  the  United 
States,  reserving  to  the  states  respectively  the  appoint- 
ment of  the  officers,  and  the  authority  of  training  the 
militia  according  to  the  discipline  prescribed  by  Con- 
gress: 

§  200.  Upon  these  two  provisions,  and  a  subsequent 
one,  that  the  President  shall  be  commander-in-chief  of 
the  militia  when  called  into  actual  service,  rest  the 
whole  power  oFthe  national  government  over  tHe  militia. 
Upon  two  occasions  only  has  the  power  to  "call  forth 
the  militia  to  execute  the  laws,  suppress  insurrections 
and  repel  invasions,"  been  exercised, — one  the  insur 
rection  in  Pennsylvania  in  1794?  the  other  to.  repel  the- 
invasion  of  the  enemy  during  the  war  of  1812.  Some 
serious  questions  have  arisen  under  this  power.  In 
consequence  of  a  requisition  made  by  President  Madison 
on  the  governors  of  Massachusetts  and  Connecticut  for 
their  quotas  of  militia,  a  question  arose  between  the 
general  and  state  governments  in  relation  to  this  power. 
In  that  and  following  discussions,  these  questions  wern 
made : 

i  United  States  vs.  Bevans,  3  Wheatou,  336.  *  Idem. 


THE    UNITED    STATES.  81 

1.  Who  is  to  determine  when  the  exigency  pointed 
out  by  the  Constitution  has  happened? 

2.  Whether  the  President  can  place  the  militia  under 
the  command  of  any  one  but  himself? 

3.  Whether  he  can  detach  parts  of  the  militia  corps? 

§  201-  On  the  first  question,  the  governors  of  Con- 
necticut, Massachusetts,  and  Rhode  Island,  with  the 
Supreme  Court  of  Massachusetts,  held1  that  the  govern- 
ors of  the  states  were  to  judge  ichen  the  exigency  con- 
templated by  the  Constitution  had  happened.  This 
doctrine,  however,  was  denied  by  President  Madison  in 
his  Message  to  Congress,  and  the  question  has  since 
been  solemnly  settled2  by  the  Supreme  Court  of  the 
United  States.  It  was  then  settled  that  the  authority 
to  decide  belongs  exclusively  to  the  President.  The 
act  of  1795,  providing  for  the  mode  of  calling  out  the 
militia,  was  framed  on  this  principle.  The' law  con- 
templates that,  in  certain  exigencies,  orders  shall  be 
given  to  carry  the  powers  into  effect,  and  no  person  can 
have  a  right  to  disobey  them.  No  provision  is  made 
for  an  appeal  from,  or  review  of,  the  President's  opin- 
ion. And  whenever  a  statute  gives  a  discretionary 
power  to  any  person,  to  be  exercised  by  him  upon  his 
own  opinion  of  certain  facts,  the  general  rule  of  con- 
struction is,  that  he  is  thereby  constituted  the  sole  and 
exclusive  judge  of  the  existence  of  those  facts.3 

§  202.  The  power  to  govern  the  militia,  when  in  the 
service  of  the  United  States,  is  an  exclusive  one;  for  any 
such  power  concurrent  in  other  authorities  would  destroy 
all  unity  of  action  and  command. 

§  203.  There  is  nothing  in  the  Constitution  to  pro- 
hibit, a  state  from  calling  forth  its  own  militia  to  assist 
the  United  States,  when  that  militia  is  not  in  the  ser- 
vice of  the  United  States,  to  suppress  insurrections  and 
repel  invasions.      Such  a  concurrent  exercise  of  power 

»  Martin  vs.  Mott;   12  Wheaton's  Rep.  30,  31. 

812Wheaton,  19,  31,32. 


82  CONSTITUTION    OF 

does  not  interfere  with,  or  obstruct  the  exercise  of,  the 
powers  of  the  Union. 

§  204.  Upon  the  questions  whether  the  President 
can  delegate  his  authority,  or  detach  parts  of  the  militia 
corps,  different  opinions  have  been  advanced  by  the 
state  and  national  authorities.  Thus,  Connecticut  and 
Massachusetts,  during  the  war,  asserted  that  he  could 
not;  President  Madison,  that  he  could.  The  latter 
seems  the  general  opinion,  and  is  certainly  most  conso- 
nant to  reason. 

§  205.  By  the  act  of  May,  1792,  Congress  provided 
for  the  organization,  arming,  and  disciplining  of  the 
militia.  By  that  act,  directions  were  given  as  to  the 
mode  in  which  the  President  was  to  give  his  orders  j 
and  refusal  or  neglect  to  obey  them  was  declared  a 
public  offence,  and  the  mode  of  trial,  by  court-martial, 
was  pointed  out.  In  relation  to  this  act,  the  Supreme 
Court  have  decided,1  that  the  militia,  when  called  into 
actual  service,  were  not  to  be  considered  in  that  service, 
or  as  national  militia,  till  they  were  mustered  at  the 
place  of  rendezvous;  and  that  until  then,  the  state  retain- 
ed a  right,  concurrent  with  the  government  of  the  Uni- 
ted States,  to  punish  their  delinquency.  If  the  militia, 
when  called  into  the  service  of  the  United  States,  refuse 
to  obey  the  order,  they  remain  within  the  military  con- 
trol of  the  state,  and  it  is  competent  for  the  state  to  pro- 
vide for  trying  and  punishing  them  by  a  state  court- 
martial. 

§  206.  In  addition  to  the  act  of  1792,  Congress  have 
passed  several  other  acts  upon  this  subject.  In  Feb- 
ruary, 1795,  a  law  was  passed,  calling  forth  the  militia, 
in  contemplation  of  the  well-known  Whiskey  Insurrec 
tion.  In  May,  1820,  they  passed  an  act  providing  thai 
the  system  of  discipline  observed  by  the  militia  through 
out  the  United  States  should  be  the  same  as  observed 
by  the  regular  army. 

l. Huston  vs.  Moore;  5  Wheat.  Rep.  1. 


THE    UNITED    STATES.  83 

§  207-  A  court-martial  that  imposes  a  fine  upon  a 
man  not  liable  to  militia  duty  are  trespassers,  as  well 
as  the  officer  who  distrains  for  such  fine.1 

§  208.  Clause  16.  To  exercise  exclusive  legislation  in 
all  cases  xchatsoever,  over  such  district  (not  exceeding  ten 
miles  square)  as  may,  by  cession  of  particular  states,  and 
the  acceptance  of  Congress,  become  the  seat  of  govern- 
ment of  the  United  States,  and  to  exercise  like  authority 
over  all  places,  purchased  by  consent  of  the  Legislature 
of  the  state,  in  which  the  same  shall  be,  for  the  erection 
of  forts,  magazines,  arsenals,  dock-yards,  and  other 
needful  buildings;  And 

Clause  17.  To  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  Constitution 
in  the  government  of  the  United  States,  or  in  any  depart- 
ment or  officer  thereof. 

§  209.  In  pursuance  of  the  power  to  exercise  exclu- 
sive jurisdiction,  &c.  &c,  Congress,  in  July,  1790,  ac- 
cepted of  a  grant  from  Virginia  and  Maryland,  of  ten 
miles  square,  on  the  Potomac,  for  the  seat  of  govern- 
ment, which  is  the  present  District  of  Columbia.  Over 
this  territory  Congress  have  exclusive  jurisdiction,  and 
exercise  all  legislative  powers. 

§  210.  The  jurisdiction  over  various  other  sites,  as 
West  Point,  &-c,  has  been  granted  by  the  Legislatures 
of  the  respective  states  in  which  they  lie,  for  military 
and  naval  purposes. 

§  211.  The  power  to  exercise  exclusive  jurisdiction 
includes  the  power  to  tax.2 

§  212.  Congress  have  the  power  of  general  as  well 
as  local  jurisdiction,  in  reference  to  acts  committed 
within  that  jurisdiction.3 

§  21 3.  The  states  cannot  take  cognizance  of  any  acts 
done  in  the  ceded  place  after  the  cession  ;  and,  on  the 

i  3  Cranch,  331 .  *  5  Wheaton's  Rep.  317. 

3  1  Kent's  Comm.  403;  G  Wheaton,  426. 


84  CONSTITUTION    OF 

other  hand,  the  inhabitants  of  those  places  cease  to  be 
inhabitants  of  the  states,  and  can  no  longer  exercise  any 
political  rights  under  the  laws  of  the  state.1 

But  there  is  commonly  reserved  by  the  states  a  right 
of  executing  criminal  process  within  the  limits  of  ceded 
places,  and  this  may  be  exercised  in  perfect  consistency 
with  the  right  of  jurisdiction  on  the  part  of  the  United 
States. 

§  214.  The  clause  giving  Congress  power  to  make 
all  laws  which  shall  be  necessary  and  proper  to  carry 
the  foregoing  into  execution,  has  given  rise  to  more 
diversity  of  sentiment,  discussion,  and  controversy  than 
any  other  in  the  Constitution.  The  reason  is  obvious; 
about  the  direct  provisions  of  that  instrument,  men  of 
ordinary  comprehension  could  have  but  little  difference 
of  opinion ;  but  as  to  what  is  necessary  and  proper,  dif- 
ferent men  might  form  very  different  judgments :  so  it 
happened;  the  Constitution  had  scarcely  gone  into 
operation  under  the  administration  of  Washington,  when 
a  radical  difference  of  opinion  arose,  in  relation  to  the 
charter  of  the  United  States  Bank. 

§  215.  In  1791,  the  Secretary  of  the  Treasury  recom- 
mended the  establishment  of  a  National  Bank,  as  neces- 
sary to  the  proper  administration  of  the  financial  con- 
cerns of  the  nation.  A  bill  for  that  purpose  was  intro- 
duced into  the  House  of  Representatives,  and  warmly 
opposed  on  constitutional  grounds.  Mr.  Giles, Mr.  Mad» 
ison,  and  Mr.  Jackson,  of  Georgia,  were  among  the  op- 
ponents of  the  measure,  and  Mr.  Ames,  Mr.  Boudinot, 
and  Mr.  Gerry,  among  its  advocates.  The  former  de- 
nied its  constitutionality,  on  the  ground  that  Congress 
could  not  exercise  any  powers  not  expressly  granted, — 
that  no  power  was  anywhere  given  to  charter  a  bank, 
— and  that,  if  such  implied  powers  were  exercised, 
there  would  be  no  limits  to  the  powers  of  the  general 
government.2  Their  opponents  contended  that  Con- 
1  3  Story's  Comm.  103;  8  Mas?.ch.  72.        2  Elliott's  Debates,  vol.  4. 


THE    UNITED    STATES.  85 

gress  had  power  to  pass  all  laws  necessary  and  proper 
to  effect  the  ends  proposed  by  the  Constitution, — that,  in 
a  confused  state  of  the  general  currency,  such  a  bank 
was  necessary  to  the  power  of  levying  and  collecting 
taxes, — and  that  it  was  implied  in  the  power  to  borrow 
money,  which  also  includes  the  power  to  lend,  and  that 
without  the  exercise  of  implied  powers,  the  government 
could  do  nothing.  After  much  debate,  the  bill  passed1 
both  Houses  of  Congress.  The  President  (Washing- 
ton), on  receiving  the  bill,  called  a  cabinet  council,  in 
which  it  was  again  debated.  The  Secretary  of  State 
(Mr.  Jefferson)  and  the  Attorney*general  denied  its  con- 
stitutionality, while  the  Secretaries  of  the  Treasury  and 
War  (Hamilton  and  Knox)  agreed  with  the  majorities 
in  Congress.  The  President,  after  deliberation,  gave 
it  his  signature,  and  the  weight  of  his  favorable  judg- 
ment. 

§  216.  In  1811,  the  charter  of  the  United  States 
Bank  expired,  and  it  was  not  rechartered.  In  the  de- 
bate upon  the  question  of  its  constitutionality,  it  was 
advocated  by  Mr.  Crawford,  and  opposed  by  Messrs. 
Clay  and  P.  B.  Porter,  upon  the  same  grounds  as  it  had 
formerly  been  advocated  and  opposed  by  Messrs.  Ames 
and  Madison.2 

§  217-  In  1816,  a  new  bank  was  chartered,  with  a 
much  larger  capital.  The  currency  of  the  country  was 
then  in  a  very  depreciated  and  bankrupt  condition. 
The  effect  of  the  establishment  of  the  bank  was  to  re- 
store a  healthy  action  to  the  money  market,  and  resus- 
citate credit. 

§  218.  In  1832,  in  anticipation  of  the  expiration  of 
the  charter  in  1836,  an  application  was  made  for  its  re- 
newal, and  the  bill  passed  both  Houses  of  Congress,  but. 
was  rejected  by  the  interposition  of  the  Executive  Veto, 
by  President  Jackson.8 

i  Kent's  Comm.  vol.  1.  p.  234.        *  4  Elliott's  Debates,  268,  276. 
8  Journals  of  Congress,  1832. 


86  CONSTITUTION    OF 

§  219.  The  action  of  the  Supreme  Court  upon  the 
subject  has  been  direct  and   distinct.     In  the   case  of 
McCullough  vs.  State  of  Maryland,1   that  tribunal  de 
cided, — 

1st,  That  Congress  has  power  to  incorporate  a 
Bank. 

2d,  That  there  is  nothing  in  the  Constitution  which 
excludes  incidental  or  implied  powers  j  and  that  if  the 
end  be  within  the  scope  of  the  Constitution,  all  the 
means  which  are  appropriate,  and  are  adapted  to  the 
end,  and  not  prohibited,  may  be  constitutionally  employ- 
ed to  carry  it  into  effect. 

3d,  That  the  Bank  of  the  United  States  has  a  consti 
tutional  right  to  establish  offices  of  discount  and  deposite 
within  the  states. 

4th,  That  the  states  cannot  tax  the  branches :  they 
have  no  right  to  tax  any  of  the  constitutional  means 
used  by  the  government  to  effect  constitutional  ends. 

5th,  That  the  last  rule  does  not  extend  to  any  of  the 
real  property  held  by  the  bank  in  particular  states,  nor 
to  the  proprietary  interests  of  any  citizen  of  that  state 
in  the  bank. 

§  220-  In  the  case  of  Osborne  vs.  Bank  of  the  United 
States,2  the  court  decided,  6th,  That  the  bank  may  sue 
in  the  Federal  Courts. 

§  221-  These  several  decisions  gave  validity  to  the 
charter,  and  the  acts  of  the  United  States  Bank :  and  so 
far  as  its  constitutionality  could  be  established  by  ju- 
dicial authority,  it  was  so.  The  authorities  upon  this 
subject  stand  thus: — Congress  passed  acts  in  its  favor 
in  1791,1816,  and  1832.  On  the  other  hand,  in  1811, 
they  rejected  a  bill  for  its  recharter.  Of  the  Executive, 
Presidents  Washington,  Adams,  Madison,  and  J.  Q. 
Adams  approved  of  it;  President  Jackson  alone  disap- 
proved. The  supreme  judicial  tribunal  of  the  Union 
has  given  a  solemn  decision  in  its  favor.     The  consti- 

»  4  Wheaton's  Rap.  316.  *  9  Wheaton,  733. 


THE    UNITED    STATES.  87 

tutionality  of  a  National  Bank  is  therefore  settled,  as  far 
as  it  can  be,  by  decision,  precedent,  and  authority.  The 
expediency  of  such  an  institution  may  at  any  time  be 
questioned  by  the  representatives  of  the  people,  and  so, 
as  a  matter  of  argument  or  theory,  may  its  constitution- 
ality, simply  because  all  things  are  open  to  discussion 
at  the  ultimate  tribunal  of  public  opinion  ;  but  the  exis- 
tence of  the  bank  being  once  supposed,  nothing  can 
shake  its  validity  while  the  decisions  of  the  Supremo 
Court  remain  unimpaired  and  the  Constitution  un- 
violated.  In  reference,  however,  to  the  decision  of  the 
Supreme  Court,  in  the  case  of  McCullough,  against  the 
State  of  Maryland,  it  may  well  be  doubted,  whether  the 
Constitution  contains  any  power  to  perform  any  acts 
which  are  merely  appropriate  and  adapted  to  the  end,  as 
stated  in  the  second  proposition;  for  most  assuredly  an 
act  may  be  appropriate  and  adapted, — which  is  not  both 
necessary  and  proper.  The  constitutionality  of  the 
United  States  Bank  was  maintained  by  Hamilton  and 
others,  upon  the  ground  of  its  necessity  to  the  fiscal  op- 
erations of  the  government. 

§  222.  Another  incidental  power  claimed  and  exer- 
cised by  the  government  is  to  create  a  priority  of  pay- 
ment in  their  favor,  in  case  of  the  death  or  insolvency  of 
the  debtor.  Congress,  by  their  acts  of  1789,  1790, 
1792,  1797,  and  1799,  gave  this  priority  of  payment 
over  private  creditors,  in  cases  of  insolvency,  and  the 
distribution  of  the  estates  of  deceased  debtors.1  In  the 
case  of  Fisher  vs.  Blight,2  the  power  thus  vested  in  the 
government  by  act  of  Congress  was  declared  to  be  con- 
stitutional, and  coming  within  the  legitimate  scope  of 
means  adapted  to  an  end  which  is  constitutional.  The 
government  must  pay  the  debts  of  the  Union,  and 
therefore  is  vested  with  the  most  eligible  means  of 
doing  it. 

§  223.  The  principle  is,  that  the  government  of  the 
*  1  Kent's  Comm.  230.  2  2  Cranch,  358. 


88  CONSTITUTION    OF 

United  States  are  preferred  creditors  to  citizens,  or  even 
to  states ;  but  no  lien  is  created  by  this  preference ;  a 
prior  bona  fide  conveyance  is  valid.  The  same  prin- 
ciple came  up  and  received  a  further  exposition  in  sev- 
eral other  cases.1 

§  224.   The  limits  of  this  priority  are  thusdefined: 

1.  It  exists  in  the  case  of  the  death  of  the  debtor 
without  sufficient  assets. 

2.  In  the  case  of  bankruptcy,  or  legal  insolvency, 
manifested  by  some  act  pursuant  to  law. 

3.  In  case  of  the  voluntary  assignment,  by  the  insol- 
vent, of  all  his  property  to  pay  his  debts. 

4.  In  case  of  an  absent,  concealed,  or  absconding 
debtor,  whose  effects  are  attached  by  process  of  law. 
This  prerogative  of  the  United  States  must  be  strictly 
construed,  for  it  is  in  derogation  of  the  rights  of  cred- 
itors. 

§  225.  The  United  States  have  likewise,  by  impli- 
cation,2 the  right  of  suing  in  their  own  courts ;  and  suits 
may  be  brought  in  the  name  of  the  United  States,  or  of 
any  artificial  person,  as  the  Postmaster-general,  for  their 
benefit.3 

§  226.  Another  exercise  of  implied  power  by  the 
government  is  found  in  the  acquisition  of  Louisiana  and 
Florida  by  treaty.  No  provision  is  made  in  the  Con- 
stitution for  acquiring  foreign  territory ;  and  even  in  the 
opinion  of  President  Jefferson,  there  was  no  constitu- 
tional power  to  make  the  treaty  for  the  acquisition  of 
Louisiana.  The  President  and  Congress,  however,  ap- 
proved the  act,  and  the  nation  acquiesced.4  This  power 
is,  however,  an  incident  of  sovereignty. 

§  227-  Another  exercise  of  implied  authority  was  the 
passage  of  the  celebrated  Alien  and  Sedition  Laws.5 
The  first  gave  the  President  the  power  to  order  out  of 

»  3  Cranch,  73;  5  Id.  289 ;  8  Cranch,  431;  2  Wheaton,  396. 
2  1  Kent's  Coram.  233.  3  3  Story's  Coram.  155. 

*3  Story's  Coram.  162;  4  Elliott's  Debates,  255. 
6  Alien  and  Sedition  Acts,  1798. 


TIIE  UNITED  STATES.  gQ 

the  country  such  aliens  as  he  should  deem  dangerous  to 
the  peace  and  safety  of  the  country;  and  Ihc  second 
made  it  a  public  crime  for  persons  to  combine  and  con- 
spire together,  with  intent  to  oppose  any  of  the  measures 
of  the  United  States,  or  to  write,  print,  or  publish,  or  to 
disseminate  any  false,  scandalous,  and  malicious  writ- 
ings against  the  government  of  the  United  States,  Con- 
gress, or  the  President.  These  acts  soon  expired  by 
their  own  limitations,  and  never  received  a  judicial 
sanction.  They  excited  general  odium,  and  have  not 
been  revived. 

§  228.  Section  9th.  1st  clause.  The  migration  or 
importation  of  such  persons  as  any  of  the  states  now  ex- 
Hsting  shall  think  proper  to  admit,  shall  not  be  prohibited 
by  the  Congress  prior  to  the  year  one  thousand  eight 
hundred  and  eight;  but  a  tax  or  duty  may  be  imposed 
on  such  importation,  not  exceeding  ten  dollars  for  each 
person. 

§  229.  The  persons  here  spoken  of  were  slaves,  and 
the  effect  of  this  clause  was  to  permit  the  slave-trade 
till  1808.  After  that  time  arrived,  Congress  prohibited 
it  in  every  direction,  and  affixed  to  it  the  penalties  of 
piracy. 

§  230.  TJie  privilege  of  the  writ  of  Habeas  Corpus 
shall  not  be  suspended,  unless  when  in  cases  of  rebellion 
or  invasion  the  public  safety  may  require  it. 

§  231.  The  term  Habeas  Corpus  is  a  Latin  phrase, 
signifying  "You  may  have  the  body."  The  Writ  of 
Habeas  Corpus  is  a  judicial  writ,  grantable  by  any 
Court  of  Record  or  judge  thereof,  and  commands  the 
sheriff,  or  other  officer  named  in  it,  to  have  the  body, 
and  bring  it  before  said  judge,  or  court.  The  object  of 
the  writ  is,  by  bringing  "a  person,  confined  by  any  means 
whatever,  before  a  competent  authority,  to  have  his  con 
finement,  and  the  cause  of  it,  investigated;  and  if  it  be 
not  strictly  legal,  to  discharge  him.1     The  writ  is  grant- 

!.l  Blackstone's  Comm. 


90  CONSTITUTION    OF 

able  upon  the  application  of  any  -person  whomsoever,  upon 
behalf  of  the  prisoner,  and  is  the  only  mode  by  which  a 
person  illegally  detained  may  at  once  obtain  his  liberty. 
The  privilege  of  the  writ  of  Habeas  Corpus  is,  there- 
fore, an  invaluable  privilege,  and  is  a  part  of  the  essence 
of  liberty  inserted  in  the  Constitution,  where  it  can  nei- 
ther be  mistaken,  nor  evaded. 

§  232.  Oar  writ  of  Habeas  Corpus  is  derived  from 
the  English  Statute  of  the  31st  Charles  II.  which  was 
passed  in  consequence  of  frequent  invasions  of  the  per- 
sonal rights  and  liberties  of  the  citizen  during  the  reign 
of  Charles  I. 

§  233.  The  writ  may  be  suspended  in  case  of  rebel- 
lion or  invasion;  yet  no  suspension  has  ever  yet  taken 
place.  An  attempt  to  suspend  it  was  made  during  the 
administration  of  Mr.  Jefferson,  on  the  occasion  of  Burr's 
conspiracy,  but  it  failed  in  the  House  of  Representatives 
by  a  large  majority.1 

§  234.  3d  clause.  No  Bill  of  Attainder,  or  Ex  Post 
Facto  law  shall  be  passed. 

The  terms  Bill  of  Attainder  and  Ex  Post  Facto  have 
already  been  defined.2  The  very  definition  of  these 
explains  the  meaning  of  the  clause  in  the  Constitution. 
The  former,  by  which  judgment  should  be  passed  and 
punishment  inflicted  upon  the  citizen  without  trial, 
and  the  latter  which  makes  an  act  criminal  which  was 
not  criminal  when  committed,  were  obviously  incon- 
sistent with  any  thing  like  justice  to,  or  liberty  in, 
the  citizen.  They  were,  therefore,  expressly  pro- 
hibited. 

§  235-  4th  clause.  No  capitation  or  other  direct  tax 
shall  be  laid,  unless  in  proportion  to  the  census  or  enu- 
meration herein  before  directed  to  be  taken. 

This  clause  is  nearly  the  same  with  a  part  of  the 
third  clause  of  the  2d  Section,  1st  Article.     The  only 

1  1  Senate  Journal,  1807 ;  Journal  of  the  House  of  Representatives, 
1807.  2  Definitions,  28  and  29. 


THE    UNITED    STATES.  9[ 

difference  is  the  insertion  of  the  word  capitation, — but 
this,  by  the  following  words,  or  other  direct  tax,  is  evi- 
dently included  under  the  head  of  direct  taxes.  The 
meaning  of  both  clauses  then  is,  that  direct  taxes,  as 
well  as  representation,  should  be  in  proportion  to  the 
census  in  each  state, — as  directed  to  be  taken  in  the  2d 
Section. 

§  236.  5th  clause.  No  tax  or  duty  shall  be  laid  on 
articles  exported  from  any  state.  No  preference  shall  be 
given  by  any  regulation  of  commerce  or  revenue  to  the 
■ports  of  one  state  over  those  of  another;  nor  shall  vessels 
bound  to  or  from  one  state,  be  obliged  to  enter,  clear,  or 
pay  duties  in  another. 

These  prohibitions  explain  themselves  so  clearly,  as 
to  require  little  exposition  by  commentary  or  authority. 
The  first  clause,  preventing  duties  upon  exported  articles, 
is  rendered  necessary  by  the  fact,  that  without  it,  the 
agriculture  and  commerce  of  some  states  might,  at  any 
time,  be  destroyed  by  such  duties.  Some  states,  as 
South  Carolina  and  Alabama,  derive  their  whole  wealth 
from  the  exportation  of  particular  articles,  and  others 
again,  as  Virginia,  and  North  Carolina,  and  Maine,  a 
great  part  of  it:  so  that  by  means  of  such  duties  the 
government  might  at  any  time  make  the  most  odious 
distinctions  among  the  states;  nor  would  it  derive  any 
advantage  to  itself,  for  duties  upon  exports  can  at  no 
time  be  advantageous,  for  the  obvious  reason  that  it  is 
by  such  means  only  a  nation  is  enabled  to  procure  either 
the  money  or  produce  of  other  nations. 

It  is  also  forbidden  to  give  any  preference  to  the  ports 
of  one ',state  over  those  of  another,  or  to  oblige  vessels 
bound  from  one  state  to  enter,  clear,  or  pay  duties  in 
another.  The  reason  of  this  is  yet  more  clear  than  that 
of  the  other.  If  the  reverse  of  this  were  true,  and  such 
preference  was  allowed,  and  such  duties  imposed  on  ves- 
sels, it  is  plain  the  states  would  be  in  the  relation  of 
foreign  states  to  each  other.     There  would  be  no  reci- 


92  CONSTITUTION    OF 

procity  of  interests  between  them,  and  the  unity  of  the 
government  would  be  destroyed. 

§  237-  6th  clause.  No  money  shall  be  drawn  from 
the  treasury,  but  in  consequence  of  appropriations  made  by 
law;  and  a  regular  statement  and  account  of  the  receipt 
and  expenditures  of  all  public  money  shall  be  published 
from  time  to  time. 

The  object  of  this  provision  was, 

1st,  To  place  the  public  moneys  beyond  the  reach  of 
the  executive:  however  limited  the  powers  of  the  execu- 
tive in  other  respects,  it  is  obvious  that  if  he  has  control 
of  the  purse,  he  would  be  unlimited  in  the  most  essen- 
tial attribute  of  power.  It  is,  therefore,  wisely  provid- 
ed, that  the  people,  who  alone  bear  the  burthens  of  tax- 
ation, should,  through  their  representatives,  alone  have 
the  power  of  appropriating  the  resulting  revenue.  The 
administrations  of  General  Washington  and  Mr.  Jeffer- 
son were  minutely  strict  in  the  observance  of  this  in- 
junction of  the  Constitution  j  but  many  instances  might 
be  cited  since  their  time,  in  which  money  had  been  ap- 
plied to  objects  different  from  those  to  which  it  had  been 
specifically  appropriated. 

§  238.  2d,  The  other  part  of  this  clause,  requiring  a 
strict  account  of  receipts  and  expenditures,  was  made 
to  ensure  fidelity  and  accuracy  in  the  disbursement  of 
public  moneys.  In  the  treasury  department,  as  will  be 
seen  hereafter,  various  checks  and  balances,  in  respect 
to  the  transfer  of  money  from  the  treasury,  have  been 
devised. 

§  239.  7th  clause.  No  title  of  nobility  shall  be  granted 
by  the  United  States,  and  no  person  holding  any4>ffice  of 
profit  or  trust  under  them  shall,  without  the  consent  of 
Congress,  accept  of  any  present,  emolument,  office,  or 
title  of  any  kind  whatever,  from  any  king,  prince,  or  for- 
eign state. 

§  240.  The  first  clause,  in  reference  to  titles  of  no- 
bility, is  the  constitutional  barrier  against  those  odious 


THE    UNITED    STATES.  93 

personal  distinctions  which  arise  from,  and  originate 
aristocracies  in  other  countries. 

The  second  clause,  in  reference  to  offices  and  titles 
from  foreign  powers,  is  made  as  a  check  against  the  cor- 
ruption of  the  officers  and  citizens  of  this  government, 
by  the  princes  and  ministers  of  foreign  states. 

§  241.  Section  10th.  Clause  1st.  No  state  shall 
enter  into  any  treaty,  alliance,  or  confederation;  grant  let- 
ters of  marque  and  reprisal;  coin  money;  emit  bills  of 
credit;  make  any  thing  but  gold  and  silver  coin  a  tender 
in  payment  of  debts;  pass  any  bill  of  attainder,  ex  post 
facto  law,  or  law  impairing  the  obligation  of  contracts; 
or  grant  any  title  of  nobility. 

§  242.  The  power  to  enter  into  any  treaty,  alliance, 
or  confederation,  is  one  of  the  most  important  attributes 
of  national  sovereignty:  when  the  states  parted  with  it, 
they  parted  with  one  of  those  characteristics  which 
made  them  independent  as  it  respects  each  other.  This 
should  be  borne  in  mind,  as  it  will  be  seen  in  the  end 
that  they  parted  with  them  all,  and  thus  divested  them- 
selves of  all  that  national  sovereignty,  which  in  modern 
times  is  the  sole  foundation  of  the  strange  and  fanciful 
theories  put  forth  under  the  name  of  state  rights. 

This  right  to  make  separate  treaties  and  alliances 
was  yielded  up  by  the  old  articles  of  confederation;  for 
it  was  perfectly  plain  and  palpable  that  the  states  could 
not  retain  it  and  form  one  united  nation:  the  latter  was 
their  object,  and  they  yielded  the  former. 

§  243.  Letters  of  Marque  and  Reprisal  are  a  com- 
mission from  the  sovereign  authority  to  a  citizen  or  sub- 
ject to  make  reprisals  on  the  vessels  or  property  of  for- 
eign nations  who  have  injured  the  one  granting  them.1 
The  right  of  issuing  these  is  prohibited  to  the  several 
states.  It  lies  in  the  government  of  the  Union.  The 
reason  of  this  also  is  obvious.  Letters  of  Marque2  are 
merely  introductions  to  war;  and  if  one  state  had  the 
*  Vattel,  book  2d,  chap.  18th,  section  346.       »  3  Story's  Comm.  219. 


94  CONSTITUTION    OF 

right  to  issue  them  independent  of  the  rest,  all  the  others 
might  immediately  be  involved  in  war  by  the  instrumen- 
tality of  that  one.  It  will  be  remarked,  that  this  right 
again  is,  by  the  definition,  an  attribute  of  national  sove> 
reignty,  and  is  therefore  taken  from  the  states  and  vested 
in  the  government  of  the  nation. 

§  244.  The  right  of  coining  money  is  also  a  right1  of 
sovereignty,  and  is  vested  in  the  general  government. 
If  the  right  of  coinage  was  vested  in  the  several  states, 
then  there  would  be  no  uniformity  in  the  standard  of 
value,  and  spurious  coin  might  be  circulated. 

§  245.  The  next  prohibition  is  that  against  issuing 
"Bills  of  Credit."  What  is  a  Bill  of  Credit?  A  Bill 
of  Credit2  is  defined  to  be  paper  intended  to  circulate 
through  the  community  for  its  ordinary  purposes,  as 
money,  which  paper  is  redeemable  at  a  future  day. 

§  246.  Is  it  necessary  to  constitute  a  Bill  of  Credit, 
that  it  should  be  made  a  legal  tender?  In  the  case  of 
Craig  vs.  the  state  of  Missouri,3  the  Supreme  Court 
decided  that  it  was  not  necessary  that  they  should  be 
made  a  legal  tender  in  order  to  constitute  them  a  Bill 
of  Credit.  In  that  case  the  state  of  Missouri  made 
loans  on  certain  certificates,  issued  by  the  Auditor  and 
Treasurer  of  the  state,  of  various  denominations,  and 
which  were  made  receivable  at  the  treasury  in  payment 
of  taxes  and  debts,  and  by  public  officers  in  payment  of 
their  salaries.  They  bore  interest,  and  were  redeema 
ble  by  the  state.  Such  certificates  were  decided  by  tho 
court  to  be  Bills  of  Credit,  and  as  such  unconstitutional. 

§  247-  The  object  of  the  prohibition  was  to  prevent 
the  flood  of  depreciated  currency  which  had  so  embar 
rassed  the  states  during  and  subsequent  to  the  revolu 
tionary  war.  It  is  plain  that  without  this  and  the  ac 
companying  clauses  in  relation  to  coins  and  currency 
there  could  be  no  fixed  standard  of  value,  and  commerce 

»  Vattel,  book  1,  chap.  10th,  sec.  106, 107.     *  3  Story's  Comm.  227. 
*  4  Peters'  Supreme  Court  Reports,  410. 


THE    UNITED    STATES.  95 

and  property  would  be  constantly  exposed  to  all  the 
hazards  of  an  uncertain  and  fluctuating  currency. 

§  248-  The  states  are  also  forbidden  to  make  any 
thing  but  gold  and  silver  coin  a  legal  tender  in  payment 
of  debts.  If  they  could  have  made  any  thing  else  a 
good  tender,  there  is  no  species  of  depreciated  currency 
which  might  not  be  paid  for  debts;  and  the  difficulties, 
dishonesty,  and  bankruptcies  attendant  upon  such  a 
state  of  things  will  be  easily  understood.  Any  thing 
may  be  borne  in  civil  society  with  more  ease  than  that 
which  interrupts  the  regular  course  of  business,  ob- 
structs the  due  administration  of  justice,  and  prevents 
the  just  payment  of  debts.  The  emission  of  Bills  of 
Credit,  and  the  making  any  thing  but  coin  a  legal  tender 
by  the  states,  would  produce  all  these  mischiefs.  Du- 
ring the  revolution,1  and  both  subsequent  and  anterior 
to  it,  the  resort  to  such  means  had  reduced  public  credit 
to  utter  contempt,  and  ruined  thousands  of  honest  and 
industrious  citizens.  It  was  the  recent  experience  of 
these  evils,  and  the  inconsistency  of  such  powers  in  the 
states,  with  the  existence  of  a  national  government, 
which  prompted  the  prohibitions  we  have  just  recited. 

§  249.  It  is  prohibited  to  the  states,  as  well  as  to  the  gen- 
eral government,  to  pass  any  bills  of  attainder  or  ex  post 
facto  laws.  The  reason  is  the  same.  The  same  injustice 
would  be  worked  in  either  case.  Such  laws,  at  all  times  un- 
just and  inexpedient,  are  peculiarly  so  in  a  country  where 
the  whole  basis  of  the  government  is  right  and  justice. 

§  250-  The  states  cannot  impair  the  obligation  of  con' 
tracts.  This  is  one  of  the  most  important  provisions  of 
the  Constitution,  and  has  already  occasioned  much  dis- 
cussion, and  been  illustrated  by  several  judicial  decisions. 

§  251.  The  first  inquiry  is,  what  is  a  contract?  A 
contract  is  an  agreement 2  to  do  or  not  to  do  a  particular 
thing.     It  must  be  made  between  two  or  more  persons.' 

1  2  Pitkin's  Civil  History,  p.  156,  157.       *2  Blackst.  Coram  443. 
3  Idem;  3  S lory's  Conmi.  341. 


96  CONSTITUTION    OP 

§  252  Contracts  may  be  either  executory  or  exe- 
cuted.1 

An  executory  contract  is  one  in  which  a  party  binds 
himself  to  do  or  not  to  do  something  hereafter.'2  Thus, 
if  two  men  agree  to  exchange  horses  next  week,  or  one 
of  them  agrees  to  do  work  to-morrow,  and  the  other  to 
pay  money  for  it,  these  contracts  are  executory,  because 
they  are  to  be  performed  at  a  future  time. 

§  253.  But,  a  contract  executed  is  one  in  which  the 
act  to  be  done  is  performed  at  once.  As,  if  two  men 
agree  to  exchange  horses  now,  and  do  it  on  the  spot,  or 
one  agrees  to  convey  land,  and  makes  and  delivers  the 
deed  on  the  spot,  such  contracts  are  executed,  because 
the  act  required  to  be  done  is  done  at  once. 

§  254-  A  grant  and  a  contract  executed  are  the  same 
thing.3  A  contract  executed  conveys  a  thing  in  posses- 
sion.    A  contract  executory  conveys  a  thing  in  action. 

§  255.  Contracts  are  also  express  or  implied.3  Ex- 
press contracts  are  those  of  which  the  terms  are  ex- 
pressed in  the  agreement;  implied  contracts  are  those 
which  are  necessarily  inferred  from  the  nature  of  the 
agreement.  An  agreement  that  I  shall  pay  so  much  for 
on  ox  is  an  express  contract.  If  a  man  work  for  me, 
for  my  benefit,  reason,  justice,  and  the  law  all  imply  a 
contract  that  I  shall  pay  him  for  it.  Both  these  kinds 
of  contracts  are  included  in  the  general  words  of  the 
Constitution. 

§  256.  The  Supreme  Court  have  decided,  that  a  con- 
tract and  a  compact  are  one  and  the  same  thing.4 

§  257.  As  the  term  contract  in  the  Constitution  is  not 
limited,  it  signifies  both  contracts  executed  and  execu- 
tory. A  grant,  therefore,  is  such  a  contract  as  cannot 
be  impaired  by  the  states.  Such  was  the  decision  in 
Fletcher  vs.  Peck.5  There  the  state  of  Georgia  had 
granted  away  certain  lands  to  Peck,  who  had  conveyed 

'Blackst.  Comm,443;  3  Story's  Comm.  24.1.  2  Wheaton,  197; 

12  Wheaton,  256.     3  •>  Blackst.  Coram.  443.  «  6  Cranch,  136. .  *  Idem. 


THE    UNITED    STATES.  97 

them  to  Fletcher  for  a  valuable  consideration;  subse 
quent  to  which,  the  state  of  Georgia  cancelled  their 
grant  to  Peck.  Fletcher  sued  on  the  covenant  of  war- 
rantee, and  the  court  held  that  the  law  cancelling  the 
grant  was  unconstitutional,  because  impairing  a  contract, 
which  had  already  vested  in  Fletcher  a  right  to  the 
land, 

§  258.  The  next  inquiry  is,  what  is  the  obligation  of 
contracts?  There  are  two  kinds  of  obligations  to  con- 
tracts,— moral  and  legal.  The  obligation  contemplated 
by  the  Constitution  is  a  legal  obligation  -,1  it  is  one  aris- 
ing under  civil  laws;  for  a  moral  obligation  cannot  be 
impaired  or  enforced  by  human  laws.  The  obligation, 
then,  meant  by  the  Constitution,  must  be  one  which 
arises  either  from  the  enactments  of  a  state,  or  can  be 
influenced  by  those  enactments.  If,  then,  a  contract  is, 
by  the  laws  of  the  place  where  it  is  made,  illegal  and 
void,  that  contract  has  no  civil  obligation,  and  no  action 
can  arise  upon  it.2  When  it  arises  from  civil  laws,  and 
is  not  by  these  laws  illegal  and  void,  then  it  is  such  an 
obligation  as  may  be  impaired,  and  consequently  such  a 
one  as  comes  within  the  scope  of  the  Constitution. 

§  259.  The  obligation,  therefore,  must  be  a  civil  one, 
and  it  must  be  valid  according  to  the  municipal  law.  It 
cannot  then  subsist  contrary  to  the  positive  law.  But 
may  it  exist  independently  of  it?  May  it  exist  without 
a  remedy?  Thus,  if  two  persons  make  a  contract  of  a 
kind  which,  though  by  the  laws  of  the  state  it  is  per- 
fectly valid  to  make,  yet  by  the  laws  of  the  state  can- 
not be  enforced,  has  that  contract  an  obligation  within 
the  meaning  of  the  Constitution?  If  it  has,  what  is  it? 
The  only  obligation  which  it  would  seem  to  have  is  a 
moral  one.  That  undoubtedly  it  has.  But  a  moral  ob- 
ligation, it  is  conceded  on  all  hands,  cannot  be  impaired, 
and  consequently  is  not  the  obligation  meant. 

§  260.     On    this  point  there  is  great  diversity  of 
i  Ogden  vs.  Saunders,  12  Wheaton,  257.    *  3  Story's  Coram.  245. 


98  CONSTITUTION    OP 

opinion.  It  is  stated  on  high  authority1  that  the  obliga- 
tion may  exist  independently  of  positive  law,  and  be 
perfect  without  a  remedy.  The  examples  given,  how- 
ever, do  not  appear  to  confirm  the  principle  laid  down. 
Thus  it  is  said,2  that  a  state  may  have  taken  away  "im- 
prisonment for  debt,  and  the  debtor  may  have  no  prop- 
erty; but  still  the  right  of  the  creditor  remains,  and  he 
may  enforce  it  against  the  future  property  of  the  debtor. 
So  a  debtor  may  die  without  leaving  any  known  estate, 
or  without  any  known  representative.  -In  such  cases 
we  should  not  say  that  the  right  of  the  creditor  was 
gone,  but  only  there  was  nothing  on  which  it  could 
presently  operate.  But,  suppose  an  administrator 
should  be  appointed,  and  property  in  contingency  should 
fall  in,  the  right  might  then  be  enforced  to  the  extent  of 
the  existing  means."  These  examples  are  cited  by  the 
learned  commentator,  to  show  that  right  may  exist  with- 
out a  remedy.  With  due  deference  to  an  opinion  which 
is  at  once  authoritative  and  respected,  it  is  thought  that 
he  has,  in  these  examples,  manifestly  confused  the  rem- 
edy given  by  the  law,  with  the  object  upon  which  that 
remedy  acts.  What  is  a  remedy  at  law*?  We  are  told 
by  an  authority,3  at  least  as  high  as  the  one  above  cited, 
that  "the  law  consists  of  several  parts,  one  declaratory, 
whereby  the  rights  and  wrongs  are  clearly  classified 
and  laid  down;  another  directory,  whereby  the  subject 
is  instructed  to  observe  these  rights,  and  abstain  from 
these  wrongs ;  a  third  remedial,  whereby  a  method  is 
pointed  out  to  recover  his  rights,  or  redress  his 
wrongs." 

§  261.  Here  the  remedy  in  law  is  defined  to  be  the 
method  whereby  a  man  may  recover  his  rights,  or  re- 
dress his  wrongs.  Now,  in  the  example  first  cited 
above,  of  a  debt,  the  remedy,  or  the  method  given  by  law 
is,  first  the  action  of  debt,  next  the  judgment  upon  that 
action,  and  lastly  the  execution  under  that  judgment; 
»  3  Story's  Comm.  247.      *  Idem.       *  1  Blackst.  Coram.  53,  54. 


THE    UNITED    STATES.  99 

now  the  person  or  property  of  the  debtor  constitutes  the 
object  upon  which  that  remedy  acts :  both  may  be  out  of 
the  reach  of  the  remedy,  and  yet  the  remedy  exist,  and 
be  perfect  at  law.  It  is  not  perfect  in  its  consequences, 
merely  because  other  circumstances,  disconnected  from 
the  remedy,  have  prevented  that  remedy  from  attaching 
to  the  object.  The  remedy  in  the  example  above  stated 
attaches  to  the  property  ;  that  property,  by  one  of  the 
conditions  of  human  life,  whether  poverty  or  misfortune, 
does  not  exist.  Here  then  the  right  to  a  remedy  is  per- 
fect: the  remedy  itself,  viz.  action,  judgment,  and  execu- 
tion is  perfect;  but  the  object  upon  which  the  remedy  is 
to  attach  is  out  of  reach.  The  case  is  the  same  in  the 
second  example,  of  an  intestate  dying  without  an  es- 
tate or  representative.  The  municipal  laws  of  almost 
every  civilized  state  either  require  that  the  Probate 
Court  should  appoint  an  administrator,  or  give  power  to 
the  creditor  to  have  one  appointed.  The  administrator 
being  appointed,  the  second  example  is  precisely  the 
same  as  the  first:  the  administrator,  as  the  representa- 
tive of  the  intestate,  is  the  debtor,  and  the  right,  the 
remedy,^ and  the  object  the  same  as  in  the  other  case. 
The  remedy  here  spoken  of  is  the  remedy  at  law.  The 
circumstance  of  the  existence  of  property  or  not,  on 
which  the  remedy  can  attach,  is  one  which  constitutes 
no  part  of  the  remedy  at  law  j  for  it  is  obviously  one  which 
no  human  law  can  regulate.  If  human  intelligence 
could  have  devised  a  means  by  which  the  debtor  should 
always  have  property  to  answer  the  demands  of  his 
creditor,  it  would  be  an  act  of  wisdom  which  never 
would  have  been  neglected.  We  may  conclude,  then, 
that  if  a  right  can  exist  without  a  remedy  to  enforce  it, 
these  are  not  examples  of  it.  Are  there  any  other 
examples,  either  real  or  imaginary,  by  which  such  a 
principle  can  be  illustrated? 

§  262.  The  meaning  of  the  term  obligation  always 
implies  a  power  to  enforce  it.     To  oblige  is  to  compel. 


100  CONSTITUTION    OF 

According  to  Justice  Blackstone,1  the  strict  sense  of  ob- 
ligation is  such  a  constraint  as  makes  it  impossible  for  a 
man  to  act  otherwise.  « 

§  263.  Civil  obligation,  then,  consists  in  the  remedial 
power  of  enforcement.  This  *  seems  to  have  been  the 
opinion  of  several  eminent  judges  in  the  celebrated  case 
of  Ogden  vs.  Saunders.2  In  that  decision  the  judges 
gave  their  opinions  seriatim;  and  in  respect  to  the  obli- 
gation of  contracts,  as  well' as  several  other  points,  were 
widely  different  in  their  judgments.  These  questions 
are,  therefore,  far  from  being  settled,  although  the  deci- 
sion upon  the  facts  of  that  case  is  doubtless  permanent  law. 

§  264.  Justice  Washington  said,  that  "the  obligation 
of  a  contract  is  the  law  which  binds  the  parties  to  per- 
form their  agreement.''''  While  he  admitted  that  the 
common  law  of  nations,  or  the  moral  law,  might  form  a 
part  of  the  obligation  of  a  contract,  he  insisted  that  this 
law  is  to  be  taken  in  strict  subordination  to  the  munici- 
pal law  of  the  land  where  the  contract  is  made,  or  is  to 
be  executed. 

§  265.  Justice  Thompson  said,  "for  it  is  the  law 
which  creates  the  obligation,  and  whenever,  therefore,  the 
lex  loci  provides  for  the  dissolution  of  the  contract  in 
any  prescribed  mode,  the  parties  are  presumed  to  have 
acted  subject  to  such  contingency." 

§  266.  Justice  Trimble  said,  "it  may  be  fairly  con 
eluded,  that  the  obligation  of  the  contract  consists  in  tW 
power  and  efficacy  of  the  law,  which  applies  to  and  en- 
forces performance  of  a  contract,  or  the  payment  of  an 
equivalent  for  non-performance.  The  obligation  does 
not  inhere  and  subsist  in  the  contract  itself,  proprio 
vigore,  but  in  the  law  applicable  to  the  contract.  This 
is  the  sense,  I  think,  in  which  the  Constitution  uses  the 
term  obligation."3 

§  267.  Chief  Justice  Marshall  then  said,4  "obligation 

1 1  Blackst.  Coram.  57.     *  1 2  Wheaton,  260.     » 12  Wheaton,  318 
*  Idem.  350. 


THE    UNITED    SPATES.*  l^)j 

and  remedy  then  are  not  identical.  They  originate  at, 
and  are  derived  from,  different  sources ; — it  would  seem 
to  follow  that  law  might  act  on  the  remedy  without  act- 
ing on  the  obligation." 

Enough  of  these  dicta  have  been  cited  to  show,  that 
while  the  majority  of  the  court  agreed  in  the  decision 
which  was  made,  the  individual  judges  held  very  differ- 
ent opinions  upon  the  main  question,  the  obligation  of 
contracts. 

§  268.  The  next  great  question  in  respect  to  the  im- 
pairing the  obligation  of  contracts,  arose  in  respect  to 
the  Insolvent  Laws  of  the  several  states.  The  princi 
pal  cases  upon  this  point  are  those  of  Sturges  vs.  Crown- 
inshield;1  McMillan  vs.  JSPNiell?  and  the  case  just  cited, 
of  Ogden  vs.  Saunders.  The  substance  of  these  decis- 
ions has  already  been  given  in  another  place.3 

§  269.  The  next  decision  upon  this  subject  was  in 
regard  to  grants.  In  the  case  of  Terrett  vs.  Taylor f 
the  Supreme  Court  decided,  that  a  legislative  grant, 
competently  made,  vested  an  indefeasible  and  irrevoca- 
ble title.  A  state  cannot  revoke  what  it  has  once  grant 
ed  away  j  nor  can  the  Legislature  repeal  statutes  crea- 
ting private  corporations,  and  divest  the  rights  under 
them,  without  the  consent  or  default  of  the  corpo- 
rators. 

§  270-  One  of  the  most  important  cases  upon  the  sub- 
ject is  that  of  Dartmouth  College  vs.  Woodward?  A 
charter  was  granted  by  the  British  crown  in  1769  to 
the  Trustees  of  Dartmouth  College,  who  acted  under  it, 
established  the  college,  and  acquired  property.  The 
Legislature  of  New-Hampshire  made  material  altera- 
tions in  the  charter,  transferred  the  government  of  the 
college  to  the  government  of  the  state,  and  made  the 
will  of  the  donors  subservient  to  their  own.6  The  Su- 
preme Court  decided  that  such  a  charter  was  a  contract 

»  4  Wheaton,  122.     *  Idem.  209.      »  Page  104.     *  9  Cranch,  43. 
s  4  Wheaton,  518.     «  1  Kent's  Comm.  390. 
9* 


102  CONSTITUTION  OF 

within  the  meaning  of  the  Constitution;  that  the  college 
was  a  private  institution,  not  liable  to  the  control  of  the 
Legislature  ;  and  that,  therefore,  the  act  of  the  Legisla- 
ture was  an  act  impairing  the  obligation  of  contracts, 
and  void.  The  court  said,  that  charters  of  an  eleemo- 
synary kind,  for  the  benefit  of  religion,  education,  or 
charity,  administered  by  trustees,  was  within  the  pur- 
view of  the  Constitution ;  and  that  rights  acquired  under 
them  were  vested  and  protected  by  it.  No  doubt  such 
is  the  clear  dictate  of  reason;  and  such  institutions,  if 
any,  ought  to  be  protected  from  the  ruthless  hands  that 
are  too  often  laid  upon  them. 

§  271.  As  the  prohibition  in  relation  to  ex  post  facto 
laws  is  confined  to  retrospective  criminal  laws, — and  as 
there  is  a  class  of  retrospective  laws  which  are  not 
criminal, — this  last  class  is  restricted  only  by  the  pro- 
hibition against  the  impairing  the  obligation  of  contracts, 
and  there  is  therefore  a  large  class  of  retrospective  laws 
which  it  is  constitutional  for  the  states  to  pass.  Thus, 
a  law  abolishing  imprisonment  for  debt,  as  well  as  to 
past  as  to  future  contracts,  may  be  constitutionally  pass- 
ed by  the  state  legislatures.1  All  retrospective  laws 
are,  however,  unjust  and  impolitic;  for  they  destroy  the 
relation  of  circumstances  under  which  the  parties  upon 
whom  the  law  acts  stood  at  the  time  they  made  the  con- 
tract, or  performed  the  act  in  question. 

The  last  prohibition  of  this  clause  is,  that  the  state 
shall  grant  no  title  of  nobility.  The  reason  of  this  is 
the  same  as  that  in  regard  to  the  national  government: 
it  was  an  exclusion  of  every  thing  like  nobility  and  ar- 
istocracy. 

§  272.  Clause  2d.  No  state  shall,  without  the  consent 
of  Congress,  lay  any  imposts  or  duties  on  imports  or  ex- 
ports, except  what  may  be  absolutely  necessary  for  exe- 
cuting its  inspection  laws;  and  the  nett  produce  of  all 
duties  and  imposts  laid  by  any  state  on  imports  and  ex- 
1  2  Peters'  Supreme  Court  Rep.  870. 


THE    UNITED    STATES.  103 

ports,  shall  be  for  the  use  of  the  Treasury  of  the  United 
States;  and  all  such  laivs  shall  be  subject  to  the  revision 
and  control  of  the  Congress.  No  state  shall,  without  the 
consent  of  Congress,  lay  any  duty  on  tonnage,  keep 
troops  or  ships  of  war  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  state  or  with  a  for- 
eign  power,  or  engage  in  war  unless  actually  invaded,  or 
in  such  imminent  danger  as  will  not  admit  of  delay. 

§  273.  The  Constitution  had  already  restricted  Con 
gross  in  the  power  to  lay  taxes,  by  requiring  that  direct 
taxes  should  be  in  proportion  to  the  census,  and  indirect 
taxes  uniform;  that  no  duties  should  be  laid  on  exports, 
and  no  preference  given  to  the  commerce  of  one  state 
over  another.  If  such' restrictions  were  found  necessa- 
ry for  the  general  government,  much  more  were  they 
for  the  several  states,  who,  by  local  regulations,  were 
at  all  times  liable  to  collision,  and  might  destroy  the 
commerce  of  each  other.  In  fact,  the  revenue  from  com- 
merce is  another  attribute  of  national  sovereignty,  and 
could  safely  be  trusted  only  to  that  body  in  whom  the 
national  sovereignty  resided,  and  to  whom  was  intrusted 
•  the  national  defence  and  the  general  welfare.  Sufficient 
power  over  internal  commerce  is  left  to  the  states,  with 
the  consent  of  Congress,  to  execute  their  inspection  laws, 
— all  the  rest  is  taken  away, 

§  274.  Inspection  laws  are  not  strictly  regulations  of 
commerce,  though  they  may  have  an  influence  upon  it.1 
The  object  of  inspection  laws  is  to  improve  the  quality 
of  articles  produced  in  the  country,  and  fit  them  for  use 
and  exportation. 

§*275.  In  the  year  1821,  the  state  of  Maryland  en- 
acted, that  all  importers  of  foreign  articles,  commodities, 
&.c,  by  bale,  package,  &c,  and  those  persons  selling 
the  same  at  wholesale  by  bale,  package,  &c,  shall,  be- 
fore they  are  authorized  to  sell,  &c,  take  out  a  license, 
for  which  they  shall  pay  fifty  dollars,  &-c.  This  act 
*  3  Story's  Comm.  472. 


104  CONSTITUTION    OF 

was  resisted  as  a  violation  of  the  Constitution,  and  the 
Supreme  Court  decided  that  it  was  unconstitutional. 
The  ground  of  the  decision  was,  that  although  an  import 
duty  is  generally  secured  before  the  goods  are  landed, 
yet  a  tax  is  not  the  less  an  impost,  though  levied  on 
them  after  they  were  landed ;  that  a  duty  on  imports  is 
not  merely  a  duty  on  the  act  of  importation,  but  is  a  duty 
on  the  thing  imported.*  Nor  does  it  make  any  difference 
whether  the  duty  was  imposed  by  way  of  license  upon 
the  occupation,  or  as  a  direct  duty  on  the  article. 

§  276.  It  has  already  been  seen  that  a  state  has  no 
power  to  tax  the  Bank  of  the  United  States,  because 
they  have  no  power  to  restrain  the  constitutional  means 
given  to  the  government  to  execute  constitutional  ends. 

§  277.  In  the  same  manner  it  has  been  decided  that 
a  state  has  no  power  to  tax  stocks  issued  for  loans  to  the 
United  States.2 

§  278.  Tonnage  duties  are  taxes  laid  on  vessels  at  so 
much  per  ton.  After  what  has  been  said  upon  the  pro- 
priety of  imposts  on  imports  and  exports  by  the  states, 
the  reason  for  prohibiting  a  duty  on  tonnage  will  be  ev- 
ident. If  the  states  could  have  laid  duties  on  tonnage, 
they  could  have  effected,  indirectly,  all  the  mischiefs 
flowing  from  a  power  in  the  states  to  tax  imports  and 
exports. 

§  279.  The  states  shall  not  keep  troops  or  ships  of 
war  in  time  of  peace :  this  again  is  founded  on  the  same 
principles  as  the  other  prohibitions  relative  to  the  exer- 
cise of  national  sovereignty;  to  keep  troops,  make  war, 
&c,  are  attributes  of  national  sovereignty,  which  could 
not  exist  at  once  in  both  the  general  and  state  govern- 
ments, without  constituting  them  separate  nations, — a 
result  which  it  was  the  very  object  of  the  Constitution 
to  prevent.  The  prohibition  does  not  extend  to  a  mu- 
nicipal guard,  such  as  those  kept  to  guard  penkentia- 

1  12  Wheaton's  Rep.  419. 

*  Wartontw.  The  City  Council  of  Charleston,  2  Peters'  R.  449. 


THE    UNITED    STATES.  J  05 

ries  and  arsenals;  for  these  are  not  troops,  but  merely 
ministers  of  the  civil  law. 

§  280-  The  power  to  make  treaties,  alliances,  and 
confederations  had,  in  another  place,  been  taken  from 
the  states  j  to  this  prohibition  is  here  superadded  that  of 
making  compacts  and  agreements  with  another  state  or 
with  a  foreign  power,  without  the  consent  of  Congress. 
It  may  be  asked  what  compacts  and  agreements  are  here 
meant?  As  alliances,  treaties,  &.c,  had  before  been 
mentioned,  this  clause  refers1  to  "private  rights  of  sov- 
ereignty;  such  as  questions  of  boundary,  interests  in  land 
situated  in  the  territory  of  each  other,  and  other  inter- 
nal regulations  for  the  mutual  comfort  and  convenience 
of  states  bordering  on  each  other."  The  compact  be- 
tween Virginia  and  Kentucky  is  of  this  class. 

§  281.  No  state  can  control  the  exercise  of  any  au- 
thority under  the  general  government.2 

§  282.  The. state  courts  cannot  annul  the  judgments, 
or  determine  the  extent  of  the  jurisdiction,  of  the  courts 
of  the  Union.3 

§  283.  No  state  tribunal  can  interfere  with  seizures 
of  property  made  by  revenue  officers  under  the  laws  of 
the  United  States.4 

§  284.  No  state  can  issue  a  mandamus  to  an  officer 
of  the  United  States.  The  official  conduct  of  an  officer 
of  the  government  of  the  United  States  can  only  be 
controlled  by  the  power  that  created  him.5 

§  285.  State  Laws,  as,  for  example,  statutes  of  limit- 
ation, insolvent  laws,  &c,  have  no  operation  upon  the 
rights  or  contracts  of  the  United  States.6 

i  3  Story's  Comm.  272.     *  1  Kent's  Comm.  382.     3  5  Cranch,  115. 
4  2  Wheaton,  1.  *  6  VVheaton,  598.  «  8  Wheaton,253. 


106  CONSTITUTION    OF 


ARTICLE  II. 


OF   THE    EXECUTIVE. 


§286.  Section  1st.  Clause  1st.  Hie  Executive  pow- 
er shall  be  vested  in  a  President  of  the  United  States  of 
America.  He  shall  hold  his  office  during  a  term  of  fou? 
years,  and,  together  with  the  Vice  President,  chosen  for 
the  same  time,  be  elected  as  follows: 

§  287.  The  chief  points  laid  down  in  this  clause  are, 
1st,  The  unity  of  the  executive;  2d,  That  he  shall  be 
elected;  3d,  He  shall  hold  his  office  for  a  limited  time; 
and,  4th,  That  he  be  styled  President. 

1st.  As  to  the  unity  of  the  executive,  common  sense, 
as  well  as  the  agreement  of  the  best  writers,1  unite  in 
the  opinion,  that  the  office  which  is  entirely  ministerial, 
— and  in  our  government  the  executive  is  so, — is  better 
filled  by  one  head  than  by  several.  History  has  in  all 
instances  condemned  the  vesting  executive  power  in  the 
hands  of  a  council,  and  whenever  the  experiment  has 
been  tried  among  the  states,  it  has  proved  disastrous. 

2d.  The  next  principle  laid  down  is,  that  the  executive 
shall  be  elective;  and  this  is  the  distinguishing  character- 
istic of  our  government  from  that  of  England,  France, 
and  other  governments  of  Europe,  where  some  portion 
of  constitutional  liberty  is  enjoyed.  It  is  not  the  power 
possessed  by  the  executive  so  much  as  it  is  the  authority 
whence,  and  the  mode  in  which,  it  is  derived,  that  consti- 
tutes the  difference  between  these  governments  and  ours. 
The  hereditary  and  perpetual  principles  which  prevail  in 
all  the  governments  of  Europe,  for  ever  destroy    all  ac- 

1  Montesquieu's  Spirit  of  Laws,  book  II.  chap.  6;  De  Lolme  on 
Constitution  of  England;  I  Kent's  Comm.  253,  255;  3  Story's 
Comm.  282.      * 


THE    UNITED    STATES.  JQ7 

countability  on  the  part  of  the  executive  to  the  people; 
hence  the  English  maxim,  "The  king  can  do  no  wrong." 
He  is,  by  their  constitution,  placed  above  inquiry  and 
accountability.  In  this  country,  however,  there  is  ac 
countability  in  all  the  departments  of  the  government. 
The  executive  is  elective,  and  his  office  of  limited  dura- 
tion ;  so  that  if  he  err  or  offend,  he  may  soon  be  held 
amenable  at  the  bar  of  public  opinion. 

3d.  The  office  is  limited. — This  principle,  like  that 
of  election,  is  necessary  to  give  a  full  and  perfect  con- 
trol of  the  public  opinion  over  the  executive,  and  make 
it  responsible. 

4th.  The  style  of  President  is  very  appropriate  to' 
the  office  of  one  whose  duty  it  is  to  preside  over  the 
administration  of  public  affairs. 

Of  the  Vice-President  we  shall  speak  hereafter. 

§  288.  Clause  2d^  Each  state  shall  appoint,  in  such  a 
manner  as  the  Legislature  thereof  may  direct,  a  number 
of  electors  equal  to  the  whole  number  of  senators  and  re- 
presentatives to  which  the  state  may  be  entitled  in  the  Con- 
gress; but  no  senator  or  representative,  or  person  hold- 
ing an  office  of  trust  or  profit  under  the  United  States, 
shall  be  appointed  an  elector. 

§  289.  The  electors  are  to  be  appointed  in  the  man- 
ner which  the  Legislature  shall  direct.  In  the  different 
States,  different  modes  of  electing  the  electors  have 
prevailed.  In  some,  the  district  mode  has  prevailed, 
as  in  the  state  of  Maryland ;  in  others,  as  in  Delaware, 
they  are  elected  by  the  Legislature  itself;  but  gene- 
rally they  are  elected  by  general  ticket.  The  first 
has  been  found  to  fritter  away  the  power  of  the  state, 
and  the  second  seemed  to  take  it  away  from  the  people. 

The  number  of  electors  a  state  is  entitled  to,  is  equal 
to  the  whole  number  of  senators  and  representatives; 
thus,  Ohio  has  19  representatives  and  2  senators;  con- 
sequently she  is  entitled  to  21  electors. 

No  qualification  is  required  of  an  elector,  except  he 


108  CONSTITUTION    OF 

shall  not  hold  an  office  of  profit  or  trust  under  the  gov- 
ernment of  the  United  States. 

§  290.  The  next  clause  in  the  Constitution  has  been 
abrogated  by  an  amendment,  passed  by  the  constitu- 
tional number  of  States  in  1801,  which  we  shall  pres- 
ently recite. 

That  clause  of  the  Constitution  required  that  the 
electors  should  vote  for  two  persons,  without  designating 
either  of  them  for  President  or  Vice-President.  That 
the  person  having  the  greatest  number  of  votes,  if  that 
be  a  majority  of  the  electors,  shall  be  President;  and  if 
there  be  more  than  one  who  has  such  a  majority,  and 
have  also  an  equal  number  of  votes,  then  the  House  of 
Representatives  shall  immediately  choose  by  ballot  one 
of  them  to  be  President;  but  if  no  one  has  the  major- 
ity, then  from  the  Jive  highest  the  House  shall  choose 
the  President.  Each  state  in  the  House  shall  have 
one  vote.  After  the  choice  of  President,  the  per- 
son having  the  highest  number  of  votes  shall  be  Vice- 
President,  and  if  two  have  an  equal  number  of  votes, 
the  Senate  shall  choose  between  them. 

§  291.  As  in  the  mode  here  pointed  out,  there  was 
no  distinction  made  between  President  and  Vice-Presi 
dent,  it  follows  that,  in  party  conflicts,  where  the  whole 
party  support  one  ticket,  it  must  necessarily  happen, 
that  unless  a  vote  be  dropped,  two  persons  would  have 
an  equal  number  of  votes,  and  consequently  the  elec- 
tion devolve  upon  the  House  of  Representatives.  This 
difficulty  actually  occurred  at  the  election  of  1801,  at 
which  Jefferson  and  Burr  received  the  same  number  of 
votes.  The  House  of  Representatives,  being  divided  by 
violent  party  feelings,  protracted  the  election  through 
thirty-six  ballotings,  and  at  last  made  the  election  only 
in  consequence  of  the  danger  of  vacating  the  executive 
office.  The  result  of  that  canvass  gave  rise  to  an 
amendment  of  the  Constitution  prescribing  the  present 
mode  of  election. 


THE    UNITED    STATES. 


109 


The  following  is  the  amendment:  « 

§  292.  12th  Amendment  to  the  Constitution.  The 
electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  President  and  Vice-President,  one  of  whom  at 
least  shall  not  be  an  inhabitant  of  the  same  state  with 
themselves ;  they  shall  name  in  their  ballots  the  person 
voted  for  as  President,  and  in  distinct  ballots,  the  person 
voted  for  as  Vice-President ;  and  they  shall  make  distinct 
lists  of  all  persons  voted  for  as  President,  and  of  all  per- 
sons voted  for  as  Vice-President,  and  of  the  number  of 
votes  for  each,  which  lists  they  shall  sign  and  certify, 
and  transmit,  sealed,  to  the  seat  of  the  government  of  the 
United  States,  directed  to  the  president  of  the  Senate; 
the  president  of  the  Senate  shall,  in  the  presence  of  the 
Senate  and  the  House  of  Representatives,  open  all  the 
certificates,  and  the  votes  shall  then  be  counted;  the 
person  having  the  greatest  number  of  votes  for  Presi- 
dent shall  be  the  President,  if  such  number  be  a  major- 
ity of  the  whole  number  of  electors  appointed :  and  if  no 
person  have  such  a  majority,  then  from  the  persons  hav- 
ing the  highest  numbers,  not  exceeding  three,  on  the  list 
of  those  voted  for  as  President,  the  House  of  Representa- 
tives shall  choose  immediately,  by  ballot,  the  President. 
But  in  choosing  the  President,  the  votes  shall  be  taken 
by  states,  the  representation  from  each  state  having  one 
vote;  a  quorum  for  this  purpose  shall  consist  of  a  mem- 
ber or  members  from  two-thirds  of  the  states,  and  a 
majority  of  all  the  states  shall  be  necessary  to  a  choice. 
And  if  the  House  of  Representatives  shall  not  choose 
a  President  whenever  the  right  of  choice  shall  devolve 
upon  them,  before  jhe  fourth  day  of  March  next  follow- 
ing, then  the  Vice-President  shall  act  as  President,  as  in 
case  of  the  death  or  other  constitutional  disability  of  the 
President. 

§  293.  The  person  having  the  greatest   number  of 
votes  as  Vice-President,  shall  be  the   Vice-President, 
if  such  a  number  be  a  majority  of  the  whole  number 
10 


no 


CONSTITUTION    OF 


of  electors  appointed ;  and  if  no  person  have  a  ma- 
jority, then  from  the  two  highest  numbers  on  the  list 
the  Senate  shall  choose  the  Vice-President:  a  quorum 
for  that  purpose  shall  consist  of  two-thirds  of  the  whole 
number  of  senators,  and  a  majority  of  the  whole  num 
ber  shall  be  necessary  to  a  choice. 

§  294.  But  no  person  constitutionally  ineligible  to 
the  office  of  President,  shall  be  eligible  to  that  of  Vice- 
President  of  the  United  States. 

§  295.  By  this  arrangement,  the  competitors  for  the 
vice-presidency  were  no  longer  candidates  likewise  for 
the  presidency;  different  persons  are  to  be  distinctly 
voted  for  as  candidates  for  each  office.  This  is  said  to 
diminish  the  dignity  of  the  office  of  Vice-President, 
but  it  seems  to  be  absolutely  necessary,  to  destroy  the 
very  confusion  of  persons  and  offices  which  occurred 
before. 

The  Senate  are  at  liberty  now  to  choose  the  Vice- 
President,  immediately  after  counting  the  votes,  which 
before  they  could  not  have  done  without  a  choice  of 
President.     This  is  certainly  an  improvement. 

§  296.  The  mode  of  choosing  the  President  does  not 
yet  seem  to  be  perfect.  A  discussion  might  arise,  on 
opening  the  certificates,  as  to  the  competency  of  the 
electors,  the  authority  of  the  votes,  &,c,  for  which  the 
Constitution  has  made  no  provision.1 

An  instance  of  defect  is  put  in  the  case  in  which  an 
equality  of  votes  should  be  given  for  more  persons  than 
the  number  from  which  the  choice  is  to  be  made.2 

§  297.  3d  clause.  The  Congress  may  determine  th( 
time  of  choosing  the  electors,  and  the  day  on  which  they 
shall  give  their  votes;  which  day  shall  be  the  same 
throughout  the  United  States. 

The  reason  of  this  clause  is  obvious.  Were  the  time 
of  giving  the  votes  different  in  different  states,  there 
would  be  the  greatest  possible  room  for  intrigue  among 
»  3  Story's  Cortim.  327.  *  Idem. 


THE    UNITED    STATES.  ]  {  [ 

the  electors,  and  as  their  body  is  small,  »sorae  of  them 
might  be  influenced  by  undue  means. 

The  power  of  determining  the  time  of  choosing  the 
electors  is  also  given  to  Congress.  They  have  not, 
however,  so  exercised  it  as  to  appoint  the  same  time. 
In  1792,  they  enacted  that  the  states  should  choose 
their  electors  within  34  days  of  the  first  Wednesday  in 
December.  The  consequence  is,  that  within  that  time 
the  elections  are  still  made  at  different  periods.  It 
would  seem  that,  to  prevent  all  possibility  of  improper 
influence  over  the  people,  the  elections  should  all  have 
been  held  on  the  same  day.  As  it  is,  those  which  are 
held  last  must  be  more  or  less  influenced  by  those  which 
are  held  first,  upon  the  principle  of  a  common  desire  in 
human  nature  to  be  on  the  strong  side. 

§  298-  4th  clause.  No  person,  except  a  natural  born 
citizen,  or  a  citizen  of  the  United  States  at  the  time  of 
the  adoption  of  the  Constitution,  shall  be  eligible  to  the 
office  of  President;  neither  shall  any  person  be  eligible 
to  that  office  who  shall  not  have  attained  to  the  age  of 
thirty-five  years,  and  been  fourteen  years  a  resident 
within  the  United  States. 

That  the  chief  executive  officer  should  be  a  citizen  of 
the  United  States,  and  a  native,  is  unquestionable.  The 
age  of  thirty-five  is  young  enough.  The  Presidents 
elected  have  all  been  more  than  that;  most  of  them 
between  sixty  and  seventy.  Indeed,  there  will  always 
be  enough  of  the  fire  of  human  passions  infused  into  the. 
executive  by  partizans,  without  the  aid  of  the  warmth 
and  ambition  of  youth. 

§  299.  By  residence  in  the  United  States  is  not  meant 
an  absolute  inhabitancy  in  the  United  States  during  the 
whole  period,  but  such  an  inhabitancy  as  constitutes  a 
permanent  domicil.  Any  other  construction  would  take 
away  the  citizenship  of  any  public  officer  resident 
abroad  in  pursuance  of  his  duty. 

§  300.  5th  clause.   In  case  of  the   removal  of  the 


112  CONSTITUTION    OF 

President  from  office,  or  of  his  death,  resignation  or 
inability  to  discharge  the  powers  and  duties  of  said 
office,  the  same  shall  devolve  on  the  Vice-President;  and 
the  Congress  may  by  law  provide  for  the  case  of  removal, 
death,  resignation,  or  inability,  both  of  the  President 
and  Vice-President,  declaring  what  officer  shall  then 
act  as  President,  and  such  officer  shall  act  accordingly, 
until  the  disability  be  removed,  or  a  President  shall  be 
elected. 

Congress,  on  this  head  have  provided,  that  in  case  of 
the  removal,  death,  or  resignation,  or  inability  of  the 
President  and  Vice-President,  the  President  pro.  tern, 
of  the  Senate,  and  in  case  there  shall  be  no  suoti  Pres- 
ident of  the  Senate,  then  the  Speaker  of  the  House  of 
Representatives  for  the  time  being,  shall  act  as  Pres- 
ident, until  the  disability  be  removed  or  the  vacancy 
filled. 

§  301.  The  case  of  a  vacancy  in  the  offices  of 
President  and  Vice-President,  by  reason  of  non  election 
at  the  proper  period,  is  not  provided  for  in  the  Constitu- 
tion. Congress  have  declared  that  in  case  of  such  an 
event,  there  shall  immediately  be  held  a  new  election. 
Whether  this  be  constitutional  or  not  is  unsettled. 

§  302.  6th  clause.  The  President  shall,  at  stated 
times,  receive  for  his  services  a  compensation  which  shall 
neither  be  increased  nor  diminished  during  the  period  for 
which  he  shall  have  been  elected;  and  he  shall  not  re- 
ceive within  that  period  any  other  emolument  from  the 
United  States,  or  any  of  them. 

The  object  of  this  provision  is  plain  enough;  it  would 
not  be  proper  to  allow  either  the  general  or  state  govern- 
ments an  opportunity,"  by  increasing  or  diminishing  the 
salary  of  the  executive  to  play  upon  its  wants  or  its 
avarice.  Congress  have  permanently  fixed  the  salary 
of  the  President  at  twenty-five  thousand  dollars,  and  that 
of  the  Vice-President  at  five  thousand  dollars. 

§  303.  7th  clause.  Before  he  enter  on  the  execution 


THE    UNITED    STATES.  113 

of  his  office,  he  shall  take  the  following  oath  or  affirmation: 
I  do  solemnly  swear  (or  affirm),  that  I  will  faithfully 
execute  the  office  of  President  of  the  United  States,  and 
will,  to  the  best  of  my  ability,  preserve,  protect,  and  de- 
fend the  Constitution  of  the  United  States. 

The  solemnities  of  an  oath  seem  to  be  proper  and 
necessary  to  all  responsible  offices,  and  peculiarly  so  to 
that  great  and  sacred  one,  the  chief  magistracy  of  a 
great  republic. 

§  304.  Section  2d.  Clause  1st.  The  President  shall 
be  commander  in  chief  of  the  army  and  navy  of  the 
United  States,  and  of  the  militia  of  the  several  states, 
%vhen  called  into  the  actual  service  of  the  United  States; 
he  may  require  the  opinion  in  writing  of  the  principal 
officer  in  each  of  the  executive  departments,  upon  any  sub- 
ject relating  to  the  duties  of  their  respective  offices;  and 
he  shall  have  power  to  grant  reprieves  and  pardons  for 
offences  against  the  United  States,  except  in  cases  of  im- 
peachment. 

The  power  to  command  the  army  and  navy,  militia, 
and  entire  military  armament,  flows  necessarily  from  the 
nature1  of  an  executive.  It  is  made  the  duty  of  the  exe- 
cutive to  enforce  the  laws,  preserve  order,  and  repel 
invasions, — duties  which  could  not  be  performed  with- 
out the  command  of  requisite  force. 

§  305.  The  power  of  the  President  to  delegate  his 
authority  to  another  officer  was  disputed  during  the  last 
war.2  The  exception,  however,  seems  untenable,  from 
the  reason  that,  if  no  one  but  the  President  in  person 
can  command  them,  then  the  President  can  only  control 
one  detachment  in  one  place, — a  result  evidently  con- 
trary to  the  intention  of  the  Constitution.  During  the 
administration  of  Washington,  the  governor  of  Virginia 
commanded  several  detachments  from  different  states 
under  the  appointment  of  the  President,  without  dispute.' 

l  1  Kent's  Comm.  2G4.  2  8  Mass.  Rep.  548. 

»  5  Marshall's  Washington,  580. 
10* 


1  1  4  CONSTITUTION    OF 

The  power  to  require  opinions  in  writing  from  the  heads 
of  departments  is  the  mere  expression  of  a  power  which 
was  necessarily  incident  to  the  organization  of  the  exe- 
cutive. 

§  306.  The  power  to  grant  reprieves  and  pardons  is 
one  which  requires  to  be,  and  is  exercised.  It  has  been 
supposed  by  some  that  a  perfect  criminal  code  requires 
no  such  power;  but  there  is  no  perfect  criminal  code. 
There  is  no  such  administration  of  human  justice,  that, 
after  the  conviction  of  the  prisoner,  it  shall  always  bo 
improper  and  unjust  to  pardon  him.  The  only  proper 
depository  of  such  a  power  is  the  executive.  The  Ju 
diciary  cannot  pardon  without  first  supposing  itself 
wrong  in  its  own  decisions;  nor  can  the  Legislature 
without  relaxing  the  law.  He,  however,  whose  only 
duty  it  is  to  execute  the  laws,  which  others  have  made 
and  adjudged,  may  very  consistently  be  allowed  to  exer- 
cise a  discretion  in  punishment. 

§  307.  2d  clause.  He  shall  have  power ;  by  and  with 
the  advice  and  consent  of  the  Senate,  to  make  treaties, 
provided  two-thirds  of  the  senators  present  concur:  and 
he  shall  nominate,  and  by  and  with  the  consent  and  advice 
of  the  Senate,  shall  appoint  ambassadors,  other  public 
ministers,  and  consuls,  judges  of  the  Supreme  Court, 
and  all  other  officers  of  the  United  States,  whose  appoint- 
ments are  not  herein  otherwise  provided  for,  and  which 
shall  be  established  by  law;  but  the  Congress  may,  by 
law,  vest  the  appointment  of  such  inferior  officers  as  they 
think  proper,  in  the  President  alone,  in  the  courts  of  law, 
or  in  the  heads  of  departments. 

Some  very  important  political  questions  have  arisen 
outof  this  provision,  and  agitated  the  minds  of  eminent 
statesmen,  as  well  as  the  councils  of  the  country. 

§  308.  In  the  year  1796,  a  treaty  was  made1  by  Mr 
Jay  with    Great  Britain,  containing  some  stipulations 
very  offensive  to  the  House  of  Representatives.     The 
1  5  Marshall's  Life  of  Washington,  650. 


THE    UNITED    STATES.  1  1 5 

treaty  was  ratified  by  the  President  and  Senate,  but 
required  a  law  to  carry  it  into  effect.  On  that  occasion, 
after  much  debate,  the  House  of  Representatives  de- 
clared by  a  vote  of  62  to  37,  that  they  had  the  right  to 
withhold  their  assent  to  the  validity  of  a  treaty,  and 
might,  at  their  pleasure,  withhold  a  law  to  carry  it  into 
effect.  This  doctrine  was  denied  by  President  Wash- 
ington, and  the  exclusive  power  of  the  President  and 
Senate  affirmed.  In  their  final  decision  upon  the  treaty, 
the  House  deemed  it  expedient,  by  a  vote  of  51  to  48, 
to  execute  the  treaty,  but  reserved  to  themselves  the 
rights  they  claimed. 

In  1816,  the  same  question  occurred,  and  the  House 
then  decided  that  the  sole  power  over  treaties  rested 
with  the  Senate  and  President. 

§  309-  The  predominance  of  opinion  now  is,  that  the 
power  to  make  treaties,  &c,  is  vested  only  in  the  exe- 
cutive and  two-thirds  of  the  Senate.  The  great  reason 
is,  that  the  Constitution  has  made  treaties,  as  well  as 
laws,  the  supreme  law  of  the  land,  and  as  such  has  made 
them,  when  ratified,  a  binding  contract  with  other  na- 
tions. 

§  310.  The  next  power  conferred  on  the  President, 
with  the  advice  and  consent  of  the  Senate,  is  the  ap- 
pointment of  ambassadors,  ministers,  consuls,  and  other 
public  officers.  This  power  is  necessary  to,  and  a  part 
of,  the  executive  power;  for  the  executive  duties  have 
to  be  performed  by  the  officers,  and  if  they  are  not  ap- 
pointed by,  and  not  responsible  to,  the  executive,  he  can- 
not be  accountable  for  the  performance  of  those  duties.2 

§  311.  As  the  Constitution  gave  power  "by  and  with 
the  advice  and  consent  of  the  Senate"  to  make  appoint- 
ments, but  said  nothing  about  removals,  it  early  became 
a  question  whether  the  power  of  removal  was  vested  in 
the  President  alone,  or  in  the  President  and  Senate 
jointly.  In  the  year  1789,  the  question  came  before 
»  4  Elliott's  Debates,  250,  275.  *  idem,  148. 


1  1  j  CONSTITUTION    OF 

Congress,  on  a  motion  to  strike  out  of  the  act  creating 
a  Secretary  for  Foreign  affairs,  a  clause  vesting  the 
President  with  the  power  of  removal.  After  a  long  and 
animated  debate,  the  House  decided  by  a  vote  of  34  to 
20  not  to  strike  out  the  clause, — thus  affirming  the  power 
of  the  President.  In  this  debate,  it  was  expressly  de- 
clared, that  the  decision  was  intended  to  be  permanent, 
and  act  as  an  exposition  of  the  Constitution;  as  such  it 
lias  remained,  and  the  power  of  the  President  to  remove 
was  never  questioned  till  recently.  In  favor  of  the 
power  were  Messrs.  Madison,  Ames,  Boudinot,  and  Bald- 
win; against  it,  Messrs.  Sherman,  Gerry,  Smith,  and 
Jackson,  of  Georgia. 

§  312.  A  learned  commentator1  has  recently  express- 
ed surprise,  that  this  power  of  removal  should  so  long  re- 
main in  the  President's  hands  without  question,  and  inti- 
mates that  it  may  be  liable  to  abuses,  and  is  at  best  of 
questionable  constitutionality.  To  this  it  may  be  an- 
swered, that  the  decision  of  this  question  was  one  of 
the  most  solemn  ever  made  by  Congress,  and,  therefore 
entitled  to  high  respect.  As  to  the  question  itself,  any 
other  decision  than  that  made,  may  at  once  be  reduced 
to  an  absurdity.  Thus,  suppose  the  power  is  vested  in 
the  President  with  the  advice  and  consent  of  the  Sen- 
ate; the  President  wishes  to  remove  an  officer,  and  com- 
municates his  wish  to  the  Senate:  that  body  calls  for 
the  reason;  the  President  gives  it,  and  the  officer, 
through  the  mouth  of  some  senator,  replies :  the  Presi- 
dent is  then  reduced  to  the  level  of  an  accuser,  or  a 
defendant,  in  respect  to  one  of  his  own  officers,  before  a 
collateral  branch  of  the  government,  which  assumes  to 
decide  between  them,  and  be  superior  to  both!  And 
suppose  the  Senate  does  not  consent  to  his  removal, — 
the  officer  retains  his  place  after  he  has  become  obnox- 
ious to  his  superior,  and  it  may  be,  obtains  impunity  for 
his  offences.  Is  this  consistent  with  either  the  dignity 
i  3  Story's  Comra.  395,  396. 


THE    UNITED    STATES.  H7 

or  the  responsibility  of  the  executive?  It  is  supposed 
by  some  very  judicious  persons,  that  an  officer  is  enti- 
tled to  his  place  during  good  behavior,  and  that  he  ac- 
quires something  like  an  estate  in  his  office.  But  no 
principle  like  this  is  recognised  in  the  Constitution.  On 
the  contrary,  every  thing  there  is  made  directly  or  indi- 
rectly elective,  and  consequently  nothing  is  placed  on  a 
more  permanent  footing  than  public  opinion.  When 
that  changes,  minor  things  must  change  with  it. 

§  31 3.  Such  inferior  offices  as  they  may  think  proper, 
Congress  may  vest  in  the  President  alone,  in  the  courts 
of  law,  or  in  the  heads  of  departments.  A  learned 
commentator1  supposes,  in  consequence  of  this  clause, 
that  Congress  may  require  the  consent  of  the  Senate  to 
such  appointments  :  now  this  is  not  at  all  obvious ;  for 
the  Constitution,  after  giving  the  appointment  of  superior 
officers  to  the  President  and  Senate,  may  give  the  ap- 
pointment of  inferiors  to  whom?  to  this  same  President 
and  Senate?  No,  but  to  the  President  alone,  the  courts 
of  law,  or  the  heads  of  departments.  After  this  express 
designation  of  these  persons,  it  is  not  in  the  competen- 
cy of  Congress  to  confer  the  appointment  on  others. 

§  314.  It  is  decided,  in  reference  to  the  power  of  ap- 
pointments, that  the  Supreme  Court  cannot  issue  a  man- 
damus to  compel  the  delivery  of  a  commission  to  an  offi- 
cer after  it  is  made  out.  This  was  so  decided  in  a  case2 
in  which  the  commission  had  been  made  out  and  depos- 
ited in  the  Secretary  of  State's  office,  during  the  admin- 
istration of  Mr.  Adams,  and  on  the  accession  of  Mr. 
Jefferson  he  withheld  it, — deeming3  that  delivery  was 
necessary  to  its  perfection,  and  being  himself  unwilling 
to  appoint  the  man.  The  case  went  off  for  want  of 
original  jurisdiction,  but  the  court  expressed  the  opin- 
ion, that  the  withholding  the  commission  was  a  violation 
of  a  legal  right. 

1 3  Story's  Comm.  397.  2  1  Crancb,  137. 

*  4  Jefferson's  Correspondence. 


118  CONSTITUTION    OF 

§  315.  3d  clause.  The  President  shall  have  power  to 
fill  up  all  vacancies  that  may  happen  during  the  recess  of 
the  Senate,  by  granting  commissions  which  shall  expire  at 
the  end  of  their  next  session. 

The  appointments  thus  made  expire  at  the  end  of  the 
next  term  of  the  Senate  by  the  constitutional  limitation. 
Suppose  the  President  should  fill  a  vacancy  during  the 
recess  of  the  Senate,  and  should  then  nominate  this  offi- 
cer to  the  Senate,  and  the  Senate  should  reject  himj  and 
the  President  should,  on  the  first  day  of  the  next  recess, 
appoint  him  again  to  fill  the  vacancy,  may  he  not  in  this 
manner  perpetuate  an  appointment  without  the  consent 
of  the  Senate  1  Certainly  this  cannot  be  the  intention 
of  the  Constitution,  for  it  would  defeat  the  co-ordinate 
power  of  appointment  which  it  has  vested  in  the  Senate . 
Yet  such  a  practice1  has  in  some  instances  recently  ob- 
tained. Where  is  the  remedy?  Nobody  is  vested 
with  power  to  annul  the  appointment;  but  it  can  be 
effectually  restrained  by  withholding  the  appropriations. 
Here,  then,  is  an  instance  of  the  signal  virtue  of  pow- 
ers, effective  and  restraining,  vested  directly  in  the 
representatives  of  the  people. 

§  316-  Does  the  power  to  fill  up  vacancies  give  the 
President  authority  to  appoint  and  commission  ambassa- 
dors during  the  recess  of  the  Senate?  In  this  manner 
President  Madison  appointed  the  Commissioners  to  ne- 
gotiate the  treaty  of  Ghent.  But  this  is  not  a  vacancy, 
neither  does  it  happen,  and  the  Senate  held  accordingly, 
in  1822,  and  decided,  that  the  President  could  not  cre- 
ate the  office  of  minister  during  the  recess  of  the  Senate 
without  the  consent  of  the  Senate. 

§  317-  Section  3d.  He  shall,  from  time  to  time  give 
the  Congress  information  of  the  state  of  the  Union,  and 
recommend  to  their  consideration  such  measures  as  he 
shall  judge  necessary  and  expedient;  he  may,  on  extraor- 

»  See  the  Journals  of  the  Senate,  1830,  1831,  1832,  1833;  cases  of 
Gwynn  and  Gardner. 


THE    UNITED    STATES.  119 

dinary  occasions,  convene  both  Houses,  or  either  of  them, 
and  in  case  of  disagreement  between  them  with  respect  to 
the  time  of  adjournment,  he  may  adjourn  them  to  such 
time  as  he  may  think  proper;  he  shall  receive  ambassadors, 
and  other  public  ministers;  he  shall  take  care  that  the  laws 
be  faithfully  executed;  and  shall  commission  all  the  offi- 
cers of  the  United  States. 

§  31 8-  The  President,  in  conformity  with  the  first  part 
of  this  section,  lays  before  Congress,  at  the  first  day  of 
their  session,  a  Message,  in  which  is  exhibited  the  oper- 
ations of  the  government  during  the  past  year,  and  which 
is  accompanied  with  reports  from  the  chief  officers  of 
government,  illustrating  the  condition  and  prospects  of 
each  department  of  the  government.  In  addition  to 
which  the  President  gives  his  opinion  upon  all  the  mea- 
sures which,  in  his  opinion,  ought  to  be  acted  upon. 
During  the  administration  of  Presidents  Washington 
and  Adams,  the  President  met  Congress  in  person,  and 
delivered  oral  speeches,  to  which  answers  were  returned, 
similar  to  the  mode  still  adopted  by  the  constitutional 
governments  of  Europe.  President  Jefferson,  however, 
abolished  that  custom,  and  ever  since  the  message  has 
been  sent  to  Congress,  and  no  answer  returned.  The 
President  communicates  to  Congress  all  the  new  cir- 
cumstances, views,  or  information  which  may  from  time 
to  time  occur;  and  Congress,  by  calls  upon  the  different 
departments,  obtain  all  the  documentary  facts  which 
they  may  desire. 

§  319.  The  power  to  call  an  extraordinary  session  of 
Congress  may  become  absolutely  necessary  to  the  pub- 
lic safety.  There  have  been  three  extraordinary  ses- 
sions called;  one  in  1797,  by  President  Adams,  on  the 
occasion  of  the  difficulties  with  France ;  another  in  1 809, 
by  President  Madison ;  and  another  in  1813,  also  by 
President  Madison. 

§  320-  The  President  has  a  general  authority  to  ex- 
ecute the  laws;  and  in  the  exercise  of  his  political  du- 


120  CONSTITUTION    OF 

ties,  independent  of  the  specific  limitations  imposed 
by  the  law  and  the  Constitution,  he  is  subject  to  no 
control,  but  is  amenable  only  to  his  conscience  and  his 
country. 

§  321.  As  incident  to  the  power  of  receiving1  ambas- 
sadors, the  President  has  the  power  to  reject  and  dis- 
miss2 them. 

§  322.  Incident  to  the  executive  functions  is  the 
power  to  perform  them  without  let  or  hinderance.3 

§  323.  Section  4th."  The  President,  Vice-President, 
and  all  civil  officers  of  the  United  States,  shall  he  re- 
moved front  office  on  impeachment  for,  and  conviction 
of,  treason,  bribery,  or  other  high  crimes  and  misdemea- 
nors. 

In  what  mode  this  impeachment  is  to  be  made  and 
tried,  we  have  seen  elsewhere.  All  officers  are  liable 
to  this  impeachment  for  offences,  although  there  is  no 
prohibition  against  other  hinds  of  removal. 

i  Federalist,  69.  2  Case  of  Genet,  5  Marshall,  443. 

3  3  Story's  Comm.  419. 


THE    UNITED    STATES.  121 


ARTICLE  III. 


JUDICIARY. 


§  324.  Section  1st.  The  Judicial  power  of  the 
United  States  shall  be  vested  in  one  Supreme  Court,  and 
in  such  inferior  courts  as  the  Congress  may  from  time  to 
time  ordain  and  establish.  The  Judges,  both  of  the  Su- 
preme  and  Inferior  Courts,  shall  hold  their  offices  during 
good  behavior,  and  shall,  at  stated  times,  receive  for 
their  services  a  compensation  which  shall  not  be  diminish- 
ed during  their  continuance  in  office. 

§  325.  The  Supreme  Court  is  instituted  by  the  Con- 
stitution, but  receives  its  organization  from  Congress.1 
The  Constitution  left  the  number  of  the  judges,  the 
mode  of  its  proceeding,  and  the  character  of  its  officers, 
to  be  subsequently  determined  by  the  Legislature.  By 
successive  acts,2  Congress  have  organized  the  Supreme 
Court  by  creating  a  Chief  Justice  and  six  Associate 
Justices,  any  four  of  whom  make  a  quorum.  It  holds 
one  annual  term  at  the  seat  of  government,  and  though 
four  judges  are  necessary  for  general  business,  yet  any 
one  of  them  may  make  all  the  necessary  orders  prepar- 
atory to  trial,  and  one  judge  attends  annually  at  the 
city  of  Washington  for  that  purpose. 

§  326.  The  inferior  courts  organized  by  Congress 
are  the  Circuit  and  the  District  Courts.  3The  Circuit 
Court  is  composed  of  one  Judge  of  the  Supreme  Court 
and  the  District  Judge,  except  when  the  District  Judge 
is  interested,  when  it  may  be  h'eld  by  the  Circuit  Judge. 
The  number  of  Circuits  is  equal  to  the  number  of  Su- 

»  1  Kent's  Comm.  279.  *  Acts  of  April,  1802 ;  Feb.  1807. 

»  Kent's  Comm.  282 
U 


122  CONSTITUTION    OF 

preme  Judges,  and  are  composed  of  two  or  three  dis 
tricts  generally,  but  some  of  the  western  states,  as  In- 
diana, Illinois,  Missouri,  &c,  have  no  Circuit  Courts. 

§  327-  Another  Court,  inferior  to  the  Supreme  Court, 
is  the  District  Court.1  This  is  composed  of  a  single 
judge,  who  holds  annually  four  terms,  and  special  courts 
at  his  discretion.  The  districts  are  composed  gener- 
ally of  a  single  state,  but  sometimes  of  a  part  of  a  state, 
as  in  New-York  and  Pennsylvania. 

The  judges  hold  their  offices  during  good  behavior. 
Any  other  provision  than  this  would  place  them  at  the 
mercy  of  the  other  branches  of  the  government.  It  is 
plain  that  the  members  of  distinct  branches  of  the  gov- 
ernment must  be  wholly  independent  of  the  other 
branches,  or  the  whole  would  soon  become  mixed  up 
into  one  absorbing  power.  In  the  state  of  New-York, 
sixty  is  the  age  at  which  a  judge's  office  expires,  and  in 
Connecticut,  seventy.  These  were  both,  however, 
provisions  made  to  answer  a  temporary  and  party  pur- 
pose. They  are  as  anomalous  in  jurisprudence  as  they 
are  contrary  to  the  maxims  derived  from  uniform  expe- 
rience. Youth  for  energy  and  age  for  judgment  are 
rules  everywhere  illustrated  in  human  life.  The  ablest 
judges  that  ever  adorned  England  and  America,  Mans- 
field and  Marshall,  gave  their  best  decisions  after  the 
age  of  seventy. 

§  328.  Their  compensation  shall  not  be  diminished 
while  in  office.  This  is  obviously  necessary.  Life 
depends  upon  sustenance,  and  to  take  from  the  judges 
their  salaries  would  drive  them  from  office. 

§  329.  Clause  2.  Section  2d.  Tlie  judicial  power  shall 
extend  to  all  cases  in  law  and  equity  arising  under  this 
Constitution,  the  laws  of  the  United  States,  and  treaties 
made,  or  which  shall  be  made,  under  their  authority;  to  all 
cases  affecting  ambassadors,  other  2>ublic  ministers,  and 
consids;  to  all  cases  of  admiralty  and  maritime  jtcrisdic- 
i  Kent's  Coram.  283. 


THE  UNITED  STATES.  123 

tion;  to  controversies  to  which  the  United  States  shall 
be  a  party;  to  controversies  between  two  or  more  states; 
between  a  state  and  citizens  of  another  state;  between 
citizens  of  different  states;  between  citizens  of  the  same 
state,  claiming  lands  under  grants  of  different  states; 
and  between  a  state,  or  the  citizens  thereof  and  foreign 
states,  citizens,  or  subjects.  In  such  cases  the  appeal  is 
to  the  state  legislature. 

The  11th  amendment  to  the  Constitution  declares, 
that  The  Judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  state,  or  by  citizens  or  subjects  of  any 
foreign  state. 

§  330-  The  jurisdiction  of  the  Supreme  Court  is  here 
made  coextensive  with  national  objects,  and  independent 
of  other  branches  of  the  government.  "There  is  no 
liberty  if  the  judiciary  power  be  not  separated  from  the 
legislative  and  executive  powers."1  The  Constitution 
and  the  laws  of  the  United  States  are  to  be  construed 
and  adjudged  of  by  the  Supreme  Court.  How  could 
they  be  adjudged  by  the  State  Courts  without  at  once 
making  the  States  superior  to  the  Union?  Yet  it  must 
be  observed,  that  the  state,  as  well  as  the  other  courts, 
have  the  power  to  construe  United  States  and  all  other 
laws,  when  they  come  incidentally  in  question  upon  the 
trial  of  a  cause. 

§  331.  All  matters  in  relation  to  treaties,  public  min- 
isters and  consuls,  admiralty  and  maritime  jurisdiction, 
come  under  the  sole  cognizance  of  the  Supreme  Court. 
These  -things  belong  to  the  laws  of  nations;  hence, 
only  a  national  court  can  sit  upon  them.  The  Supreme 
Court  is  the  national  court  of  the  United  States,  and  in 
this  single  clause,  we  see  at  once  the  wide  distinction 
placed  by  the  Constitution  between  the  United  States' 
Courts  and  the  State  Courts.  By  this,  taken  in  con- 
1  Montesquieu's  Esprit  de  Loix,  book  11,  chap.  6. 


124  CONSTITUTION    OF 

nexion  with  the  other  clauses  upon  the  jurisdiction  of  the 
Supreme  Court,  and  the  prohibitions  upon  the  states,  the 
Supreme  Court  is  made  a  national,  while  the  State 
Courts  are  merely  municipal  courts. 

§  332.  The  next  sentence  is  in  perfect  conformity  to 
this  principle;  for  if  the  Supreme  Court  be  national,  it 
is  the  proper  arbiter  between  the  different  States,  and  in 
relation  to  all  controversies  which  involve  the  rights 
and  laws  of  different  states.  Accordingly,  the  Consti- 
tution gives  the  court  jurisdiction  of  controversies  be- 
tween two  or  more  states;  between  a  state  and  the  citi- 
zens of  other  states,  or  foreign  states  when  the  state  u 
not  defendant;  and  between  citizens  of  the  same  state, 
claiming  under  grants  of  different  states.  The  simple 
reading  of  these  provisions  is  a  sufficient  answer  to 
every  theory  which  supposes  that  the  states  have  suffi- 
cient power  to  annul  the  laws  of  the  Union.  In  this 
article  a  tribunal  is  erected  superior  to  all  state  courts, 
and  by  the  express  direction  of  the  Constitution,  a  com- 
petent arbiter  between  the  states  themselves.  "There 
must  be  some  tribunal,  than  which  there  can  be  no 
higher,"  is  an  axiom  self-evident  in  all  governments 
which  purport  to  have  system  and  stability;  for  without 
it  they  must  become  mere  anarchies.  In  the  Supreme 
Court,  the  Constitution  has  established  that  tribunal  in 
the  United  States,  and  it  is  manifest,  that  within  its 
jurisdiction,  pointed  out  by  the  Constitution,  it  is  above 
all  others.  When  we  go  behind  this,  there  is  nothing 
left  but  the  people, — whose  work  the  Constitution  itself 
is, — but,  who  cannot  be  appealed  to  against  their  own 
laws,  till  they  have  first  resolved  those  laws  to  be  a  nul- 
lity, and  themselves  into  a  state  of  nature.  This  is  a 
right  which  is  left  to  all  people  of  all  nations,  savage 
and  civilized, — the  right  of  rebellion, — never  to  be  ex- 
ercised till  sufferance  is  exhausted.  Provision  is  made, 
as  we  shall  see  hereafter,  for  amending  the  Constitution, 
but  this  presupposes  a  constitution,  and  a  government; 


THE    UNITED    STATES.  125 

this  amendment,  then,  in  the  forms  -prescribed  by  tho 
Constitution,  is  not  the  exercise  of  that  ultimate  right 
we  have  spoken  of  above. 

§  333.  But,  while  it  is  affirmed  that  the  Supreme 
Court  is  the  ultimate  tribunal,  it  must  be  borne  in  mind 
that  the  functions  of  a  court  are  to  say  what  the  law  is, 
and  not  to  make  it.  They  are  judges,  not  lawgivers. 
"The  judicial  department  has  no  will  in  any  case. 
Judicial  power,  as  contradistinguished  from  the  power 
of  the  laws,  has  no  existence.  Courts  are  the  mere  in- 
struments of  the  law,  and  can  will  nothing."1 

§  334.  In  the  clause  above,  the  phrase  is  read  "all 
cases  in  law  or  equity."  The  reference  here  is  plainly 
to  those  common  law  distinctions  of  law  and  equity  reme- 
dies, which  before  existed  in  the  jurisprudence  of  Eng- 
land and  this  country.  So  far  as  the  remedies  go, 
the  Constitution  recognises  the  existence  and  the  ope- 
ration of  the  common  law.2  And  it  would  seem,  as  the 
reference  is  direct  to  the  remedy  at  common  law,  that 
the  principles  upon  which  the  remedy  is  to  be  applied 
must  be  the  same;  and  such  is  the  interpretation  and 
mode  of  administering  justice  in  such  cases  in  the  courts 
of  the  United  States.  What  is  a  case  as  here  contem- 
plated?- "A.  case  is  a  suit  in  law,  or  equity,  instituted 
according  to  the  regular  course  of  judicial  proceedings; 
and  -when  it  involves  any  question  arising  under  the 
Constitution,  laws,  or  treaties  of  the  United  States,  it  is 
within  the  judicial  power  confided  to  the  Union."3 

§  335.  To  understand  the  jurisdiction  of  the  Su- 
preme Court,  we  must  consider  the  next  clause  of  this 
section,  which  is, 

2d  clause — In  all  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls,  and  those  in  which  a  state 
shall  be  a  party,  the  Supreme  Court  shall  have  original 

J  Osborn  vs.  Bank  United  Slates,  9  Wheaton's  Rep.  866. 
2  3  Story's  Comm.  506. 

s  Id.  507;  1  Tucker's  Blk.  Comm.  App.  418,  420;  Madison's  Vi* 
gmia  Resolutions,  1800. 
11* 


126  CONSTITUTION    OP 

jurisdiction.  In  all  the  other  cases  before  mentioned, 
the  Supreme  Court  shall  have  appellate  jurisdiction,  both 
as  to  law  and  fact,  with  such  exceptions  and  such  regu- 
lations as  the  Congress  shall  make. 

§  336.  Jurisdiction  may  be  considered,  1st,  With 
reference  to  the  parties;  2dly,  In  relation  to  the  subject 
matter;  and  3dly,  In  respect  to  realm  or  locality. 

1st.  Jurisdiction  in  reference  to  the  parties.  The 
parties  who  come  within  the  jurisdiction  of  the  Supreme 
Court,  are,  1.  Ambassadors,  public  ministers,  and  con- 
suls; 2.  The  United  States;  3.  The  States;  4.  Citi- 
zens of  different  States;  5.  Citizens  of  the  same  state 
6.  Foreign  states,  citizens,  or  subjects. 

§  337.  1.  Ambassadors,  public  ministers,  and  con 
suls.  The  grades  of  public  ministers,  and  the  laws 
which  apply  to  them,  we  shall  see  in  another  place.1 
The  rights,  duties,  powers,  and  privileges  of  public 
ministers  are  determined,  not  by  municipal  constitutions, 
but  by  the  law  of  nature  and  nations,  which  is  equally 
obligatory  upon  all  nations.  Consuls  are  not  strictly 
ministers, hut  merely  commercial  agents.  The  Constitu- 
tion, however,  has,  in  relation  to  the  courts,  placed  them 
upon  the  same  level  as  ministers.  In  cases  against  min- 
isters and  consuls,  the  jurisdiction  is  supposed  exclusive.2 

The  indictments  found  against  persons  for  offering 
violence  to  ministers,  &c,  and  their  servants,  do  not 
come  within  the  scope  of  the  phrase,  affecting  ambas- 
sadors, &c.  &>c.  The  minister  is  not  a  party  to  the 
record.3  Yet  if  he  be  not  a  party,  the  case  may  be  one 
which  affects  him  in  interest,  and  the  court  has  decided 
that  in  such  a  case  it  has  jurisdiction. 

§  338.  2.  The  United  States.  To  enforce  the  rights 
of  the  United  States,  they  must  sue  either  in  their  own 
courts,  or  those  of  the  states.  In  the  latter  they  would 
at  once  be  subject  to  the  states,  the  very  end  which  the 

1  Chapter  on  the  Practical  Operation  of  the  Government. 

*  1  Kent's  Comm.  44.  3  3  Story's  Comm.  524. 


THE    UNITED    STATES.  127 

Constitution  was  formed  to  prevent.  In  their  own 
courts  they  could  enforce  their  own  rights,  and  have  a 
uniform  rule  of  justice.  The  latter,  therefore,  was 
adopted.  The  clause  which  conferred  this  jurisdiction 
on  the  Supreme  Court  gave  no  power  to  individuals  to 
bring  suit  against  the  United  States,  nor  have  they  or 
the  states  any  such  power.  It  is  inherent  in  the  nature 
of  sovereignty  not  to  be  amenable  to  any  private  person. 
The  same  exemption  extends  to  every  state  in  the 
Union.2  What  remedy,  then,  has  the  citizen  against  the 
national  government  for  injustice  and  injury?  If  it  be 
an  oppression  exercised  by  public  functionaries  upon  the 
body  of  the  people,  the  people  have,  through  the  Con- 
stitution, the  power  of  removing  them.  If  the  oppression 
be  in  the  exercise  of  unconstitutional  powers,  the  func- 
tionaries who  wield  them  are  amenable  for  their  injuri- 
ous acts  to  the  judicial  tribunals  of  the  country,  at  the 
suit  of  the  oppressed  * 

§  339.  The  government  is,  in  itself,  incapable  of  a 
personal  wrong,  such  as  assault  and  battery,  and  personal 
violence.4  In  respect  to  property,  the  remedy  lies 
against  the  immediate  perpetrators,  who  cannot  shelter 
themselves  under  an  agency  from  the  government. 
Such  agent,  like  every  other  violator  of  the  laws,  must 
refund  in  damages  to  the  injured  party.6 

§  340.  In  the  case  of  contracts,  however,  the  agent 
is  not  responsible  when  lawfully  made,  and  the  govern 
ment  cannot  b^e  sued;  hence,  the  only  remedy  is  by 
legislative  interposition, — -an  appeal  to  Congress.  This 
may  be  justly  considered  as  a  defect  upon  the  part  of 
Congress,  who  have  the  right  to  provide  a  mode  of 
settling  private  rights.  In  this  respect,  as  in  every 
other  concerning  justice  between  public  and  private 
rights,  the  contrast  between  us  and  the  government  of 
England  is  strongly  against  us.  There  the  subject  is 
allowed  to  bring  what  is  called  a  petition  of  right  before 

» Story's  Comm.  538.      2  Ibid.      3  ibid.  539.      4  Ibid.  Ibid. 


128  CONSTITUTION    OF 

the  Chancellor,  who  as  a  matter  of  duty,  hears  it,  and 
administers  right  according  to  the  fact.1 

§  341.  3.  Another  class  of  parties  under  the  juris- 
diction of  the  Supreme  Court  are  the  States.  The  pro- 
vision subjecting  the  states  to  the  jurisdiction  of  the 
Supreme  Court,  brings  them  at  once  within  the  sover- 
eignty of  the  Union,  even  if  all  the  powers  before  vested 
m  the  national  government  had  not.  This  jurisdiction 
is  frequently  exercised,  and  although  the  states  have 
often  been  much  irritated,  yet  they  have  uniformly  sub- 
mitted. As  the  amendment  to  the  Constitution  has 
taken  the  states  out  of  the  jurisdiction  of  the  Supreme 
Court  when  the  suit  is  against  them  by  individuals,  it 
becomes  important  to  inquire  when  a  state  is  to  be 
deemed  a  party,  so  as  to  avail  itself  of  this  exemption  ? 
"A  state  is  a  party  only  when  it  is  on  the  record  as 
such,  and  sues  or  is  sued  in  its  political  capacity."2  It 
is  not  sufficient  that  it  has  an  interest  in  the  suit,  as  be- 
tween other  persons,  or  that  its  powers  and  duties  come 
incidentally  in  question.3  The  same  principle  applies 
to  incorporations  under  the  state,-  thus  an  incorporated 
bank,  in  which  the  state,  is  stockholder,  is  suable,  al- 
though the  state  is  exempt  from  the  action.4  "As  a 
member  of  a  corporation,  a  government  never  exercises 
its  sovereignty." 

§  342.  It  is  laid  down  as  "a  rule,  which  admits  of  no 
exception,  that  in  all  cases  under  the  Constitution  of  the 
United  States,  where  jurisdiction  depends  upon  the  party, 
it  is  the  party  named  on  the  record." 

§  343.  4-  The  next  class  of  parties  are  "Citizens  of 
different  states."  The  first  inquiry  here  is,  who  is  a 
citizen  of  a  state,  and  how  does  he  change  his  citizen- 
ship? Does  it  depend  upon  his  domicil,  or  residence, 
or  upon  any  other  principle?    Judge  Story  has  answered 

'  3  Story's  Comm.  541.  2  idem  549. 

3  3  Dall.  R.  411;    United   States   vs.  Planter's    Bank  of  Georgia, 
9Wheaton,  904.  f  Story's  Coram.  565. 


THE    UNITED    STATES.  j   y) 

Aiese  questions  in  his  commentaries  in  a  very  satisfac- 
tory manner.  "  The  Constitution,"  says  the  commenta- 
tor, "having  declared  that  the  citizens  of  each  state  shall 
be  entitled  to  all  the  privileges  and  immunities  of  citi- 
zens in  the  several  states,  every  person,  who  is  a  citi- 
zen of  one  state,  and  removes  into  another,  with  the 
intention  of  taking  up  his  residence  and  inhabitancy 
there,  becomes  in  reality  a  citizen  of  the  state  where  he 
resides ;  and  he  then  ceases  to  be  a  citizen  of  the  state 
from  which  he  has  removed  his  residence."1  What  cir- 
cumstances constitute  such  a  change  of  residence?  A 
removal  from  one  state  into  another,  with  an  intention 
of  remaining,  constitutes  a  change  of  residence,  and  con- 
sequently of  citizenship.2  But  a  native  citizen  of  one 
state  never  ceases  to  be  a  citizen  thereof  till  he  acquires 
a  new  citizenship  elsewhere.  Residence3  in  a  foreign 
country  does  not  change  his  citizenship.  Every  citizen 
of  a  state  is  a  citizen  of  the  United  States.4  A  natural- 
ized citizen,  by  a  residence  in  any  state  in  the  Union, 
becomes  a  citizen  of  that  state.  So  a  citizen  of  a  ter- 
ritory, by  a  residence  in  a  state,  acquires  the  character 
of  the  state  where  he  resides.5 

§  344.  But  a  naturalized  citizen  of  the  United  States, 
or  a  citizen  of  a  territory,  does  not  become  a  citizen  en- 
titled to  sue  in  the  courts  of  the  United  States,  by  such 
residence  in  a  territory,  nor  until  he  has  acquired  a  resi- 
dence in  a  particular  state.* 

§  345.  5.  A  corporation,  as  such,  is  not  a  citizen  of 
a  state  in  the  sense  of  the  Constitution :  but  if  all  the 
members  of  the  corporation  are  citizens,  their  character 
will  confer  jurisdiction.7  A  citizen  may  sue,  who  is 
trustee,  executor,  or  administrator  for  another. 

§  346.  Citizens  of  the  same  state  may  be  parries, 

i  3  Story's  Comm.  565.  2  id.  3  1  Kent's  Comm.  Sect.  4. 

4  3  Story's  Comm.  565.  5  id.  566;  6  Peters'  Supreme  C.  R.  761. 

6  1  Kent's  Comm.  360;  1  Wheaton's  R.  91.  1  United  States 

vs.  Planter's  Bank,  9  Wheaton,  410;  8  Wheaton,  668. 


130  CONSTITUTION    OF 

when  they  claim  under  grants  of  different  states.  This 
is  the  only  case  in  which  the  Constitution  gives  juris- 
diction directly  to  the  Federal  Courts,  over  cases  be- 
tween citizens  of  the  same  state.  The  reason  is,  that  it 
contemplates  a  case  in  which  the  laws  and  boundaries 
of  different  states  are  brought  into  question,  and  upon 
which,  therefore,  the  state  tribunals  are  not  unbiased. 

§  347.  6.  "Foreign  states,  citizens,  and  subjects" 
may  be  parties.  Who  is  a  foreign  citizen  or  subject?  or 
who  is  an  alien?  Any  person  who  is  not  a  citizen  of 
the  United  States  is  an  alien.  But  when  he  is  natural- 
ized, he  is  no  longer  an  alien;  fbr  this  is  a  case  provided 
for  by  the  Constitution  and  the  laws :  and  it  makes  no  dif- 
ference whether  he  sues  in  his  own  name  or  as  a  trustee. 

§  348.  A  foreign  corporation  established  in  a  foreign 
country,  all  of  whose  members  are  aliens,  can  sue  in  the 
same  manner. 

§  349-  The  jurisdiction  vests,  however,  only  when 
one  party  to  a  suit  is  a  citizen.1  Alien  enemies,  how- 
ever, cannot  sue;  their  right  is  suspended  until  peace. 

§  350.  Jurisdiction  in  relation  to  the  subject  matter 
is  Original,  or  Appellate. 

The  court  has  original  jurisdiction  in  all  cases  con- 
cerning ambassadors,  public  ministers,  and  consuls,  and 
those  in  which  a  state  is  the  party;  in  all  others  it  has 
appellate  jurisdiction,  both  as  to  law  and  fact,  under  such 
regulations  and  exceptions  as  Congress  shall  make. 
This  jurisdiction  cannot,  by  the  words  of  the  Constitu- 
tion, be  exercised  without  the  intervention  of  Congress ; 
but  Congress  are  bound  by  that  part  of  the  clause  which 
refers  to  "  all  cases,"  to  confer  all  the  jurisdiction  granted 
by  the  Constitution,  in  some  form  or  other,  upon  the 
Supreme  Court.  By  the  act  of  September,  1789,  this 
was  done,  and  the  Supreme  Court  have  exercised  their 
appropriate  powers  uninterruptedly  since. 

§  351.  This  original  jurisdiction  is  confined  to  the 
i  Story's  Comm.  571. 


THE    UNITED    STATES.  131 

enumerated  cases,  and  cannot  be  enlarged  by  Congress. 
Congress  cannot  give  it  appellate  jurisdiction,  when  the 
Constitution  has  given  it  original,  nor  original  where  it 
has  appellate  jurisdiction.1  The  grant  of  original  juris- 
diction is  exclusive,  and  negatives  any  enlargement. 

§  352.  Whether  the  original  jurisdiction  vested  in  the 
Supreme  Court  may  not  be  exercised  concurrently  by 
the  inferior  courts,  is  an  undecided  point.2 

§  353.  Another  question  is,  whether  the  court  can 
exercise  appellate  jurisdiction  in  those  cases  where  it 
has  original  jurisdiction  ;3  and  it  is  thought  it  can. 

§  354.  What  is  appellate  jurisdiction?  "The  essen- 
tial criterion  of  appellate  jurisdiction  is,  that  it  revives 
and  corrects  the  proceedings  in  a  cause  already  insti- 
tuted, and  does  not  create  that  cause."  The  appellate 
jurisdiction  may  be  exercised  in  a  variety  of  forms, — 
indeed  in  any  form  which  the  Legislature  may  prescribe. 
But  the  substance  must  exist  before  the  form  can  be 
applied.  Where  the  object  is  to  review  a  judicial  pro- 
ceeding, the  mode  is  immaterial;  and  a  writ  of  habeas 
corpus',  or  mandamus,  a  writ  of  error,  or  an  appeal  may 
be  used,  as  the  Legislature  may  prescribe.4 

§  355.  The  most  usual  modes  of  exercising  appellate 
jurisdiction  are  writs  of  error,  appeals,  or  some  process 
of  removal.6  An  appeal  removes  the  entire  cause,  fact, 
or  will,  or  law  for  a  review  and  new  trial.  A  writ  of 
Error  removes  nothing  for  re-examination  but  the  law. 

§  356.  The  appellate  jurisdiction  of  the  Supreme 
Court  extends  to  the  decisions  of  the  State  Courts.  By 
the  act  of  September  1789,  Sect.  25,  it  is  declared  that 
the  final  judgment  or  decree  of  the  state  courts  may  be 
re-examined  and  reversed,  or  affirmed  in  those  cases  in 
which  is  drawn  in  question  the  validity  or  construction 

»  3  Madison  vs.  Marbury,  1  Cranch,  137;  1  Kent's  Comm.  302. 
«  11  Wheaton,  467.    •  3  3  Story's  Comm.  576. 

«  Id. ;  6  Wheaton's  Rep. ;  2  Peters'  Supreme  C.  R.  449  ;  Ingersoll's 
Digest,  375.  s  3  Dallas,  342;  1  Wheaton,  304 


132  CONSTITUTION    OP 

m 

of  a  treaty,  and  the  decision  is  against  the  right,  title, 
or  privilege  set  up,  or  claimed  under  it;  or  where  is 
drawn  in  question  the  validity  of  a  statute,  or  an  author- 
ity exercised  under  a  state,  on  the  ground  of  their  being 
adverse  to  the  Constitution,  treaties,  or  laws  of  the 
United  States,  and  the  decision  is  in  favor  of  their  val- 
idity. Such  cases  may  be  brought  upon  writ  of  Error; 
and  such  writ  has  the  same  effect  as  if  directed  to  the 
Circuit  Court  of  the  United  States. 

§  357.  Hence,  if  the  highest  court  in  a  state  reverse 
the  judgment  of  a  subordinate  court,  and,,  on  appeal  to 
the  Supreme  Court  of  the  United  States,  the  judgment 
of  the  highest  court  in  a  state  be  reversed,  it  becomes 
a  nullity,  and  a  mandate  issues  to  the  inferior  court  for 
execution.1  The  record  in  such  cases  must  show  the 
error,  by  showing  some  act  of  jurisdiction. 

§  358.  Jurisdiction  in  respect  to  locality.  Here  we 
may  consider,  1st,  Within  what  boundaries  the  author- 
ity^ the  United  States  Courts  is  limited;  2d,  The  mar- 
itime and  admiralty  jurisdiction  of  the  courts. 

§  359.  1.  What  are  the  territorial  limits  of  jurisdic- 
tion? The  limits  of  jurisdiction,  as  it  respects  the  Su- 
preme Court,  are  the  limits  of  the  United  States,  for  the 
decisions  of  all  other  courts,  whether  territorial,  district, 
or  state,  are  within  the  rules  as  to  subject  and  parties 
already  laid  down  and  are  subject  to  revision  in  that  tribunal ; 
except  that,  in  the  Territorial  Courts,  no  appeal  lies  from 
their  decisions  without  a  special  statutory  provision.  The 
territories  are  under  the  sole  and  absolute  control  of 
Congress.2 

§  360-  The  district  court  has  cognizance  of  crimes 
and  offences,  which  are  cognizable  D*y  the  United  States 
tribunals,  and  which  arc  committed  within  the  respec- 
tive districts,  or  on  the  high  seas. 

§  361.  The  District  Courts  have  also  admiralty  and 
maritime  jurisdiction  on  the  high  seas,  and  also  within 
i  3  Dallas,  342;  1  Wheaton,  301.  2  1  Kent's  Coram.  3G0. 


THE    UNITED    STATES.  133 

waters  leading  from  them,  and  in  which  vessels  of  ten 
tons  burden  may  navigate.1 

§  362.  The  concurrent  jurisdiction  of  the  state  and 
national  courts  has  also  been  a  subject  of  some  diffi- 
culty. 

It  is  settled,  that  no  part,  of  the  criminal  jurisdiction 
of  the  United  States  can  be  delegated  to  state  tribunals: 
and  the  admiralty  and  maritime  jurisdiction  is  of  the 
same  exclusive  cognizance.  It  can  only  be  in  those 
cases  where,  previous  to  the  Constitution,  state  tribu- 
nals possessed  jurisdiction  independent  of  national  au- 
thority, that  they  can  now  exercise  a  concurrent  juris- 
diction.2 

§  363.  State  courts  may,  in  the  exercise  of  their  or- 
dinary jurisdiction,  incidentally  take  cognizance  of  cases 
arising  under  the  Constitution,  laws,  and  treaties  of  the 
United  States :  but  the  United  States  courts  have  appel- 
late jurisdiction. 

§  364-  Where  the  jurisdiction  is  concurrent,  the  sen- 
tence of  either  court,  whether  of  conviction  or  acquittal, 
may  he  pleaded  in  bar  of  a  prosecution  before  the  other. 
So  also  the  judgment  of  a  state  court  in  a  civil  case  of 
concurrent  jurisdiction,  may  be  pleaded  in  bar  of  an  ac- 
tion for  the  same  cause,  instituted  in  a  Circuit  Court  of 
the  United  States.3 

§  365.  The  conclusion  then  is,  that  in  judicial  mat- 
ters the  concurrent  jurisdiction  of  the  state  tribunals 
depends  altogether  upon  the  pleasure  of  Congress,  and . 
may  be  revoked  and  extinguished  whenever  they  think 
proper,  in  every  case  in  which  the  subject  matter  can 
constitutionally  be  cognizable  in  the  federal  courts;  and 
that,  without  an  express  provision  to  the  contrary,  the 
state  courts  will  retain  a  concurrent  jurisdiction  in  all 
cases  where  they  had  jurisdiction  originally  over  the 
subject  matter."4 

»  Act  of  Sept.  1789.         2  l  Rent's  Comm.  372;  1  Wheaton,  304. 
»5  Wheaton,  1.  <  1  Kent's  Comm.  374. 

12 


134  CONSTITUTION    OF 

§  366.  Various  acts  of  Congress  give  jurisdiction  to 
state  courts  and  magistrates  in  both  civil  cases,  and  for 
fines  and  forfeitures  under  the  laws  of  the  United  States; 
but  the  state  courts  are  not  bound  to  assume  jurisdiction 
in  such  cases.1 

§  367.  It  has  been  questioned  whether  the  state 
courts  could  issue  a  Habeas  Corpus,  and  exercise  juris- 
diction in  a  case  where  the  imprisonment  was  by  an 
officer  of  the  United  States,  or  under  pretext  of  the  au- 
thority of  the  United  States.  The  state  courts,  how- 
ever, have  exercised  such  jurisdiction,  although  no  final 
decision  has  been  had  upon  the  question.2 

§  368.  No  state  court  can  issue  an  injunction  upon 
any  judgment  in  a  court  of  the  United  States  :3  nor  can 
the  state  legislature  annul  the  judgments,  or  destroy 
the  rights  acquired  under  them,  or  determine  the  extent 
of  their  jurisdiction.4  Nor  can  a  state  court,  or  author- 
ity, prescribe  the  rules  or  forms  of  proceedings,  nor  ef- 
fect of  process  in  the  courts  of  the  United  States  :5  nor 
issue  a  mandamus  to  an  officer  of  the  United  States  to 
compel  him  to  perform  duties  devolved  upon  him  by  the 
laws  of  the  United  States.8 

§  369.  On  the  other  hand,  the  national  courts  have 
no  authority  (in  cases  not  within  the  appellate  jurisdic- 
tion of  the  United  States),  to  issue  injunctions  upon 
judgments  in  the  state  courts;  or  in  any  manner  to  in- 
terfere with  their  jurisdiction  and  proceedings."7 

§  370.  It  is  a  question  unsettled,  whether  the  United 
States  courts  have  a  Common  Law  jurisdiction?  In  the 
case  of  the  United  States  vs.  Hudson  &  Goodwin,8  tried 
for  a  libel  on  the  President,  the  Supreme  Court  decided, 
by  a  majority,  that  they  had  no  Common  Law  jurisdic- 

i  1  Kent's  Comm.  375. 

2  Idem ;  10  Johnson's  Rep.  328;  5  Hall's  Law  Journal,  82;  11  Mass. 
Reports,  68.  8  3  Story's  Comm.  624 ;  7  Cranch,  279. 

4  5  Cranch,  115.  5  10  Wheaton,  21,  22,  51. 

6  6  Wheaton,  598.  '  3  Story's  Commentaries,  626. 

•  7  Cranch,  32. 


THE    UNITED    STATES.  135 

tion.  In  the  case  of  the  United  States  vs.  Coolidge,1 
the  Circuit  Court  for  Massachusetts  decided  it  had  such 
jurisdiction  in  admiralty  cases.  The  Supreme  Court, 
however,  adhered  to  their  former  opinion.  In  conse- 
quence of  this  division,  and  the  opinions  of  different 
commentators,  this  point  is  not  wholly  settled.2 

§  371.  Another  extensive  subject  of  discussion  in  the 
courts  of  the  United  States,  is  the  admiralty  and  mari- 
time jurisdiction  of  the  District  Courts. 

The  District  Courts  act  as  courts  of  Common  Law, 
and  also  as  courts  of  Admiralty.  In  England  a  differ- 
ence existed  between  the  Instance  and  Prize  Courts 
The  former  is  defined3  to  be  the  ordinary  admiralty 
court,  and  the  latter  an  extraordinary  one,  having  juris- 
diction only  in  time  of  war,  and  in  prize  cases.  In  the 
United  States,  however,  the  Supreme  Court  have  deter- 
mined that  the  District  Courts  have  all  the  powers  of 
courts  of  admiralty,  whether  as  instance  or  prize 
courts.4 

§  372.  Chancellor  Kent,  who  has  made  law  classical 
in  our  country,  has  given  a  brief  review  of  the  powers 
of  these  courts,  which  may  be  stated  in  the  following 
propositions. 

1.  As  to  the  jurisdiction  of  Prize  Courts.  The  prize 
jurisdiction  extends  to  all  captures  in  war  made  on  the 
high  seas.  Prize  goods  are  goods  taken  on  the  high 
seas  by  right  of  war,  out  of  the  hands  of  the  enemy.4 
The  prize  jurisdiction  also  extends  to  captures  in  for 
eign  ports  and  harbors,  and  to  captures  made  on  land 
by  naval  forces.  It  extends  to  captures  made  in  rivers, 
ports,  and  harbors  of  the  captors'  own  country.  The 
prize  court  extends  also  to  all  ransom  bills  upon  cap- 
tures at  sea,  and  to  money  received  as  ransom  or  com- 
mutation on  a  capitulation  to  naval  forces.6 

§  373.  If  the  prize  be  unwarrantably  carried  into  a 

i  1  Gallison,  188.  2  1  Kent's  Comm.  315.  3  Idem.  331. 

4  3  Dal/as,  6.  s  1  Kent's  Coram.  334  «  Idem.  335. 


125  CONSTITUTION    OP 

foreign  port,  and  there  delivered  by  the  captors  upon 
security,  the  prize  court  does  not  lose  its  jurisdiction 
over  the  capture  and  the  questions  incident  to  it.  So, 
if  the  prize  be  lost  at  sea,  or  actually  lying  within  a  for- 
eign neutral  territory,  the  court  has  jurisdiction. 
Prize  courts  act  upon  the  thing  instead  of  the  person^ 
and  that  notwithstanding  any  contract  between  the  par- 
ties.2 Prize  courts  have  likewise  exclusive  jurisdiction 
and  discretion  as  to  the  allowance  of  freight,  damages, 
expenses,  and  costs  in  all  cases  of  capture,  and  as  to  all 
torts  and  per&onal  injuries  connected  with  captures.8 

2.  Criminal  Jurisdiction  of  the  Admiralty.  The  Act 
of  September,  1789,  gives  to  the  District  Courts,  exclu- 
sive of  the  State  Courts,  and  concurrent  with  the  Cir- 
cuit Courts,  jurisdiction  over  crimes  and  offences  cogni- 
zable by  the  authority  of  the  United  States,  and  com- 
mitted within  their  districts,  or  upon  the  high  seas, 
where  only  a  moderate  corporal  punishment,  or  fine,  or 
imprisonment  is  to  be  inflicted.  As  this  confers  juris- 
diction only  in  minor  crimes,  it  was  a  question  whether 
the  courts  had  any  jurisdiction  over  cases  of  murder,  &c. 
In  the  case  of  the  United  States  against  M'Gill,4  it  was 
decided  they  had  not.  The  same  was  decided  in  Uni- 
ted States  vs.  Bevans.6  It  is  now  settled,  that  the  fed- 
eral courts,  as  courts  of  admiralty,  are  to  exercise 
such  criminal  jurisdiction  as  is  conferred  upon  them 
expressly  by  acts  of  Congress,  and  they  are  not  to  ex 
ercise  any  other.6  \ 

This  limitation,  however,  does  not  extend  to  private 
prosecutions  in  the  District  Court  to  recover  damages 
for  a  marine  tort. 

§  374-  As  to  the  division  between  the  jurisdiction  of 
the  Admiralty  and  the  courts  of  Common  Law. 

On  the  sea-shore,  the  jurisdiction  of  the  admiralty  is 

I 1  Kent's  Cora.  336.  «  Id.  337.  »  Idem. 

«  4  Dallas,  426.  5  5  Wheaton,  76. 

•  1  Kent's  Commentaries,  341, 


THE    UNITED    STATES.  13/ 

limited  to  low-water  mark,1  and  between  that  and  high- 
water  mark,  where  the  sea  ebbs  and  flows,  the  common 
law  and  admiralty  have  a  divided  jurisdiction. 

§  375-  In  the  Circuit  Court  of  the  United  States  it 
has  also  been  decided,  that  the  admiralty  jurisdiction 
extends  to  all  maritime  contracts,  torts,  injuries,  and 
offences  on  the  high  seas,  and  in  ports  and  havens,  as  far 
as  the  ebb  and  jiow  of  the  tide? 

It  has  been  asked  what  cases  come  within  the  mean- 
ing of  admiralty,  and  what  of  common  law  jurisdiction? 
It  is  now  settled  that  all  seizures  under  laws  of  import, 
navigation,  and  trade,  if  made  upon  tide-waters  nav- 
igable from  sea,  are  civil  cases  of  admiralty  jurisdic- 
tion.3 

§  376.  The  admiralty  and  maritime  jurisdiction  of 
the  District  Courts  is  exclusive.  The  Constitution  ex- 
tends the  judicial  authority  of  the  United  States  to  all 
cases  of  admiralty  jurisdiction,  and  the  act  of  Congress 
enacts,  that  the  District  Courts  shall  have  exclusive  ori- 
ginal cognizance  of  all  civil  causes  of  admiralty  and 
maritime  jurisdiction. 

4.  Jurisdiction  of  the  Instance  Courts. 

§  377.  The  Instance  Courts  take  cognizance  of 
crimes  committed,  and  things  done,  and  contracts  not 
under  seal,  made  on  the  bosom  of  the  sea.4  The  cause 
must  arise  wholly  upon  the  sea  to  be  within  the  admiralty 
jurisdiction.  If  the  act  be  done  partly  on  land  and  part- 
ly on  water,  the  Common  Law  has  the  preference. 

§  378.  The  admiralty  has  cognizance  of  maritime 
hypothecations5  of  vessels  and  goods  in  foreign  ports, 
for  repairs  done,  or  necessary  supplies  furnished. 

§  379.  If  the  admiralty  has  cognizance  of  the  prin- 
cipal thing,  it  has  also  of  the  incident.  Thus,  goods 
taken  by  pirates  and  sold  on  land,  may  be  recovered 
from  the  vendee  by  suit  in  admiralty. 

»  1  Kent's  Commentaries,  343.  *  2  Gallison,  398. 

3 1  Kent's  Comm.  349.  4  Idem.  352.  *  Idem. 

12* 


138  CONSTITUTION    OP 

The  proceedings  in  admiralty  are  according  to  the 
course  of  the  civil  law,  and  are  brief  and  simple.1 

§  380-  "The  Supreme  Court  shall  have  appellate 
jurisdiction  both  as  to  law  and  fact."  This  clause  was, 
at  first,  supposed  to  confer  the  power  of  reviewing  the 
verdicts  of  juries  on  matters  of  fact.  This  was  not, 
however,  the  case.  "The  real  object  of  the  provision 
was  to  retain  the  power  of  reviewing  the  fact  as  well  as 
the  law  in  cases  of  admiralty  and  maritime  jurisdic- 
tion."2 This  subject  is  now  settled  conclusively  by 
an  amendment  to  the  Constitution,  in  the  following 
words : 

"  In  suits  at  Common  Law,  where  the  value  in  contro- 
versy shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved;  and  no  fact  tried  by  jury  shall 
be  otherwise  re-examined  in  any  court  of  the  United 
States  than  according  to  the  rules  of  the  Common  Law." 

This  at  once  prohibits  the  re-examination  of  facts 
already  tried  by  jury  in  any  other  manner. 

The  only  modes  known  to  the  Common  Law  to  re- 
examine such  facts  are — 1st.  The  granting  a  new  trial 
by  the  court  where  the  issue  was  tried,  and  2d,  by  a 
Writ  of  Error,  for  an  error  in  law,  by  some  appellate 
court;  neither  of  these  includes  the  power  of  re-exam- 
ining facts  already  tried  by  another  court. 

§  381..  The  appellate  jurisdiction  is  to  be  with  such 
exceptions  and  regulations  as  «  the  Congress  shall  pre- 
scribe." But  here  a  question  is  asked,  whether  the  ju- 
risdiction attaches  to  the  Supreme  Court  in  its  own  na- 
ture, to  be  modified  by  Congress,  or  whether  an  act  of 
Congress  is  necessary  to  confer  that  jurisdiction  ?  If 
Congress  have  the  power  they  may  repeal  it,  and  thus 
destroy  the  whole  efficacy"  of  the  court.  It  was  form- 
erly decided  by  the  Supreme  Court,  that  if  Congress 
provided  no  rule   to  regulate  their  proceedings,  they 

»  1  Kent's  Comm.  354;  3  Story's  Comm.  629. 

*  3  Peters's  Rep.  446.  3  3  Story's  Comm.  648. 


THE    UNITED    STA.TES.  139 

could  exercise  no  jurisdiction.  That  decision  has,  how- 
ever, been  since  overruled,  and  it  is  asserted  by  the 
Supreme  Court,  that  without  any  limitation  of  powers 
by  an  act  of  Congress,  it  must  possess  all  the  jurisdic- 
tion which  the  Constitution  assigns  it.  The  appellate 
powers  of  the  Supreme  Court  are  given  by  the  Consti- 
tution, and  not  by  the  judicial  act.1  But  they  are  reg- 
ulated and  limited  by  that  act. 

§  382.  There  are  certain  incidental  powers  which  are 
attached  to  all  courts  without  the  necessity  of  an  enact- 
ment. 

The  functions  of  the  judges  are  strictly  judicial. 
They  cannot  be  called  upon  to  advise  the  President,  or 
to  give  extra-judicial  opinions,  or  to  act  as  commission- 
ers, or  other  like  matters. 

Thus  also  the  courts  have  power  over  their  own  offi- 
cers, and  the  power  to  protect  them  and  their  members 
from  being  disturbed  in  the  exercise  of  their  functions. 
All  courts  have  the  power  to  attach  for  contempts,  and 
by  means  of  this  they  can  protect  themselves. 

§  383.  3d  clause.  The  trial  of  all  crimes,  except  in 
cases  of  impeachment^  shall  he  by  jury;  and  such  trial 
shall  be  held  in  the  state  where  the  said  crimes  shall  have 
been  committed.  But  when  not  committed  within  any  state, 
the  trial  shall  be  at  such  place  or  places  as  the  Congress 
•nay  by  law  have  directed. 

§  384.  In  connexion  with  this  must  be  taken  the 
amendments  on  the  same  subject,  as  follows : 

Amendment  5th.  No  person  shall  be  held  to  answer 
for  a  capital,  or  otherwise  infamous  crime,  unless  on  a 
oresentment,  or  indictment  of  a  grand  jury,,  except  in 
eases  arising  in  the  land  or  naval  forces,  or  in  the 
militia  when  in  actual  service,  in  time  of  war  or  public 
danger;  nor  shall  any  person  be  subject,  for  the  same 
offence,  to  be  twice  put  in  jeopardy  of  life  or  limb;  nor 
shall  be  compelled  in  any  criminal  case  to  be  a  witness 
»  6  Cranch,  307,  313. 


140  CONSTITUTION    OF 

against  himself;  nor  be  deprived  of  life,  liberty,  or 
property,  without  due  process  of  law;  nor  shall  private 
property  be  taken  for  public  use  without  just  compensa- 
tion. 

§  385-  Amendment  6th.  In  all  criminal  prosecutions, 
the  accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial,  by  an  impartial  jury  of  the  state  and  district 
wherein  the  crime  shall  have  been  committed; 

§  386.  The  right  to  a  trial  by  jury  is  of  very  ancient 
date.  It  was  firmly  established,  however,  in  the 
Magna  Charta,  granted  at  Runneymede.1  In  that 
instrument  it  is  declared,  that  no  freeman  shall  be  in- 
jured in  person  or  property  except  by  the  judgment  of 
his  peers,  or  the  law  of  the  land.  From  that  time  to 
[his  it  has  descended  unimpaired  through  the  govern- 
ments of  England  and  this  country.  It  is  esteemed, 
and  correctly,  the  most  precious  right  of  freemen;  for  it 
enables  them  to  appeal  from  the  arbitrary  judgments  of 
either  governments  or  individuals,  to  the  disinterested 
verdicts  of  their  equals.  The  term  peers  means  equals, 
and  a  judgment  by  his  peers  is  one  by  his  equals.  The 
verdict,  then,  is  given  by  those  who  are  not  only  neigh- 
bors, but  taken  from  the  same  rank  and  circumstances 
of  life,  and  influenced  by  all  the  sentiments  of  justice  or 
humanity  which  may  be  supposed  to  actuate  persons 
placed  in  similar  situations,  and  liable  to  the  same  con 
tingencics. 

§  387.  The  trial  of  all  crimes  must  also  be  in  the 
state  where  it  is  committed.  This  is  to  avoid  the  diffi- 
culty, expense,  and  oppression  which  might  happen  from 
being  carried  into  other  states,  and  before  foreign  tribu- 
nals.2 

Before  a  person  can  be  tried  for  a  crime,  he  must  first 

be  charged  by  a  Grand  Jury  with  the  offence.     This 

charge  is  in  the  form  of  a  presentment,  or  indictment.     A 

Grand  Jury  is  a  number  of  men,  not  less  than  twelve, 

>  3  Blackstone,  350.  2  3  Story's  Comra.  655. 


THE    UNITED    STATES.  J4J 

nor  more  than  twenty-three,  of  whom  twelve  must  agree 
in  the  charge,  selected  in  the  manner  of  other  juries, 
from  the  body  of  the  people  within  the  county  where 
they  are  summoned.1  They  are  sworn  to  make  diligent 
inquiry  of  all  offences  committed  against  the  authority 
of  the  government,  and  the  peace  of  the  state  within  the 
body  of  their  county.  In  the  United  States  Courts  they 
are  sworn  to  inquire  and  present  all  offences  against  the 
national  government,  and  within  its  jurisdiction.  When 
the  grand  jury  are  assembled,  the  proper  officer,  com- 
monly the  District  Attorney  for  the  state,  lays  before 
them  all  the  offences  of  which  he  has  any  knowledge, 
and  the  evidence  by  which  the  charges  against  the  pris- 
oners are  supported.  They  examine  this  carefully,  and, 
if  they  find  the  testimony  probable,  and  sufficient  to  in- 
duce a  rational  belief  in  the  charges,  they  find  what  is 
called  a  bill,  or  an  indictment,  and  indorse  on  it  A  true 
bill.  This  bill  or  indictment  is  a  formal  charge  of  the 
offence  against  the  prisoner,  usually  drawn  up  by  the 
attorney  for  the  state.  If  the  grand  jury  do  not  find 
the  bill  true,  they  indorse  on  it  "Not  a  true  bill,"  and 
the  prisoner  is  discharged;  but  a  new  bill  may  be  found 
by  a  new  jury.2  The  indictment  must  charge  person, 
time,  place,  and  nature  of  the  offence  with  clearness  and 
certainty;  otherwise  it  will  be  void  for  uncertainty. 

§  388.  It  is  also  provided,  that  no  person  shall  be 
twice  put  in  jeopardy  of  life  or  limb  for  the"  same 
offence.  The  meaning  is,  that  no  person  shall  be  twice 
tried  for  the  same  offence:  it  is  also  added,  that  this 
can  only  be  pleaded  when  there  has  been  an  actual  ver- 
dict and  judgment,  and  not  when  the  jury  have  been 
dismissed  for  want  of  agreement,  or  a  new  trial 
granted.3 

§  389.  No  person  can  be  compelled  to  be  a  witness 
against  himself,  or  be  deprived  of  life,  liberty,  or  proper- 
ty, without  process  of  law.     This  is  merely  an  affirra- 
i  4  Blackstone,  302.  *  3  Story's  Comm.  658.  *  Id.  659. 


142  CONSTITUTION    OF 

ance  of  the  Common  Law,  as  is  also  the  former  pro- 
vision. In  fact  nearly  the  whole  of  these  amendments 
in  relation  to  trial  by  juries,  were  common  law  privileges, 
but  inserted,  no  doubt,  for  more  absolute  certainty,  and 
that  no  doubt  should  ever  be  permitted  to  enter  the 
minds,  as  to  this  subject,  of  either  lawgivers  or  judicial 
expositors. 

§  390-  One  of  these  re-enactments  of  the  Common 
Law  is,  that  no  private  property  shall  be  taken  for  public 
use  without  just  compensation:  yet  plain  justice  as  this  is, 
it  is  frequently  violated  in  this  country  by  indirect 
means,  and  shows  how  difficult  it  is  to  preserve  private 
rights  when  the  people  at  large  are  interested  against 
them:  thus,  private  land  is  frequently  taken  for  public 
works,  streets,  highways,  canals,  &c.j  the  owners  are 
remunerated  by  an  appraised  valuation,  not  of  what  the 
property  is  worth  in  itself,  but  with  the  additional  cir 
cumstance  of  its  increased  value,  by  an  improvement 
which  the  owner  never  desired,  and  in  his  judgment, 
is  injurious  to  his  interests.  The  plain  rule  of  jus- 
tice is,  to  pay  the  actual  value,  without  reference 
either  to  the  increase  or  diminution  of  value  in  the  resi 
due. 

§  391.  The  trial  by  jury  is  public,  in  the  presence  of 
both  the  prisoner  and  the  witnesses.  The  accused  is  en- 
titled to  compulsory  process  to  obtain  witnesses,  and  is 
also  entitled  to  have  counsel.  This  provision  was  in- 
serted because,  by  the  ancient  common  law  the  prisoner 
had  not  that  privilege,  but  acquired  it  by  a  statute  of 
William  and  Mary.1  Indeed,  the  criminal  jurisprudence 
of  England,  previous  to  that  time,  was,  except  the  trial 
by  jury,  conducted  with  the  greatest  disregard  of  justice 
Neither  had  the  prisoner  the  benefit  of  counsel,  though 
as  the  maxim  ran,  the  judge  is  his  counsel,  and  bound 
to  see  him  have  equal  advantages  with  the  accuser. 
This  discreditable  injikstice  on  the  part  of  the  Common 
»  3  Story's  Conim.  663. 


THE    UNITED    STATES. 


143 


Law  is,  however,  entirely  done  away  by  these  pro- 
visions of  the  Constitution. 

§  392.  Section  3d.  1st  clause.  Treason  against  the 
United  States  shall  consist  only  in  levying  war  against 
them,  or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort.  No  person  shall  be  convicted  of  treason 
unless  on  the  testimony  of  two  witnesses  to  the  same  overt 
act,  or  on  confession  in  open  court. 

2d  clause.  The  Congress  shall  have  power  to  declare 
the  punishment  of  treason;  but  no  attainder  of  treason 
shall  work  corruption  of  blood,  or  forfeiture,  except 
during  the  life  of  the  person  attainted. 

Treason  is  some  act  whose  object  is  the  overthrow  of 
the  government:  hence  it  is  the  highest  crime  against 
society,  and  universally  regarded  with  odium  and  re- 
sentment. The  definition  of  what  is  treason,  and  what 
is  necessary  to  conviction,  is  of  vast  importance  to  the 
peace  of  society,  and  the  liberty  of  the  citizen.  Con* 
structive  or  implied  treason,  from  suspicious  circum- 
stances, is  dangerous  wherever  it  exists.  In  the 
reign  of  Edward  III.  in  England,  a  statute  was  passed 
declaring  and  defining  treason  and  its  different  branch- 
es.1 This  was  confirmed  by  the  statute  of  Mary  I.  Our 
Constitution  has  used  the  very  words  of  this  statute,  and 
thus  adopted  its  definition,  with  the  interpretation  which 
it  has  received  during  several  centuries.  The  war  must 
be  actually  levied  to  constitute  treason.  A  conspiracy 
to  levy  war  is  not  treason.2 

§  393.  The  punishment  of  treason  in  our  country  is 
simply  death  by  hanging;  at  the  Common  Law  it  was 
accompanied  by  many  barbarities,  which  would  not 
now  be  tolerated. 

§  394.  By  corruption  of  blood  is  meant  the  destruc- 
tion of  all  inheritable  qualities; — so  that  no  one  can 
claim  any  thing  from  a  person  attainted,  or  through  him. 

1  Hawkins,  p.  6,  book  I.  chap.  1-7.  »  4  Cranch,  126. 


144  CONSTITUTION    OF 

A.  son  could  not  claim  from  a  grandfather,  deriving  title 
through*  a  father  that  was  attainted.1 

§  395.  A  state  cannot  take  cognizance  of  or  punish 
the  crime  of  treason2  against  the  United  States.  As 
treason  is  a  crime  whose  object  is  to  overthrow  the  gov- 
ernment, and  the  government  of  the  state  is  guarantied 
by  that  of  the  United  States,  it  follows,  there  can  be  no 
treason  against  a  state,  which  is  not  also  treason  against 
the  United  States,  and  consequently,  the  crime  of  trea- 
son cannot  be  punished  by  the  states. 


ARTICLE  IV. 

MISCELLANEOUS. 

§  396.  Section  1st.  Full  faith  and  credit  shall  be  giv- 
en in  each  state  to  the  public  acts,  records,  and  judicial 
proceedings  of  every  other  state.  And  the  Congress  may, 
by  general  laws,  'prescribe  the  manner  in  which  such  acts, 
records,  and  proceedings  shall  be  proved,  and  the  effect 
thereof 

§  397-  The  laws  and  acts  of  foreign  nations  are  not 
judicially  taken  notice  of  by  other  nations,  but  must  be 
proved,  like  other  facts,  when  they  come  under  exami- 
nation. The  mode  of  proof  varies  in  different  countries. 
As  to  the  effect  to  be  given  foreign  judgments,  all  civil- 
ized nations  are  agreed  they  shall  have  some  effect,  but 
what,  they  are  not  agreed  upon.  In  England  and  the 
United  States,  foreign  judgments  are  what  is  called 
prima  facie  evidence  of  what  they  decide.  This  means 
that  they  shall  be  taken  as  true  till  the  contrary  is 
proved.  A  domestic  judgment,  however,  is  true  conclu- 
sively, and  cannot  be  contradicted. 

»  Story's  Comm.  171.  *  Idem.  173. 


THE    UNITED    STATES.  J  45 

§  398.  The  full  faith  and  credit  mentioned  in  the 
Constitution,  was  inserted  to  place  the  judgments  of  the 
different  states  upon  a  different  footing  from  those  of 
foreign  nations.  The  latter  were  already  prima  facie 
evidence;  the  former  then  must  be  conclusive.  They 
have  absolute  verity,  so  that  they  cannot  be  denied  any 
more  than  in  the  state  where  they  originated.1  If  a 
judgment  is  conclusive  in  the  state  where  it  is  pro- 
nounced, it  is  conclusive  everywhere;  if  re-examinable 
there,  it  is  so  elsewhere.  It  is  placed  upon  the  same 
ground  as  a  domestic  judgment. 

§  399.  Section  2d.  1st  clause.  The  citizens  of  each 
state  shall  be  entitled  to  all  privileges  and  immunities  of 
citizens  in  the  states. 

2d  clause.  A  person  charged  in  any  state  with  trea- 
son, felony,  or  other  crime,  who  shall  fee  from  justice, 
and  be  found  in  another  state,  shall,  on  demand  of  the 
executive  authority  of  the  state  from  which  he  fed,  be 
delivered  up  to  be  removed  to  the  state  having  jurisdic- 
tion of  the  crime. 

3d  clause.  No  person  held  to  service  or  labor  in  one 
state,  under  the  laws  thereof,  escaping  into  another,  shall, 
in  consequence  of  any  law  or  regulation  therein,  be  dis- 
charged from  such  service  or  labor,  but  shall  be  de- 
livered on  claim  of  the  party  to  whom  such  service  or 
labor  may  be  due. 

§  400.  The  object  of  the  first  part  of  the  clause  is 
plain  enough.  If  each  citizen  was  not  a  citizen  of  the 
United  States  in  other  states,  then  the  states  would  be 
completelyybmgTi  to  each  other,  and  their  citizens  aliens 
in  each  other.  This  clause  makes  each  citizen  of  a  state 
a  citizen  of  the  United  States,  and  as  such  confers  on  him 
rights  and  privileges  throughout  the  whole  Union. 

§  401.  The  subject  of  delivering  up  fugitives  from 
justice  is  one  which  among  different  nations  has  in- 
volved some  doubts.     In  the  United  States,  however,  it 

i  3  Story's  Comm.  180;  1  Peters'  C.  R.  74,  80. 
13 


146 


CONSTITUTION    OF 


is  firmly  fixed  by  the  above  provision,  which  requires 
them  always  to  be  given  up  to  those  who  have  a  right 
to  require  it. 

§  402.  The  next  clause,  relative  to  persons  held  to 
service  or  labor,  plainly  refers  to  the  slaves  of  the 
southern  states  who  may  take  refuge  in  the  non-slave- 
holding  states.  The  delivery1  in  the  case  of  fugitives 
and  slaves  is  to  be  made,  not  after  a  full  trial,  which 
would  manifestly  defeat  the  end  in  view ;  but  after  a 
summary  investigation  before  a  magistrate,  in  which  it 
shall  appear  probable  that  the  circumstances  charged 
are  true.  By  an  act  of  Congress,  1793,  it  is  provided 
that  such  proof  may  be  made  before  any  magistrate,  by 
the  principal  or  his  attorney,  and  may  be  either  by  affi- 
davit or  oral  testimony  to  his  satisfaction.  The  magis- 
trate is  then  authorized  to  give  a  certificate  of  the  facts 
to  the  party  or  his  agent,  which  certificate  is  suificient 
warrant  of  removal.  Heavy  penalties  are  laid  on  those 
who  hinder  or  resist  such  proceedings,  or  harbor  any 
of  the  fugitives  or  slaves. 

§  403.  Section  3d.  1st  clause.  New  states  may  be 
admitted  by  the  Congress  into  this  Union;  but  no  new 
state  shall  be  formed  or  erected  within  the  jurisdiction  of 
any  other  state;  nor  any  state  be  formed  by  the  junction 
of  two  or  more  states,  or  parts  of  states,  without  the  con- 
sent of  the  legislatures  of  the  states  concerned,  as  well 
as  of  the  Congress. 

2nd  clause.  Hie  Congress  shall  have  power  to  dis- 
pose of  and  make  all  needful  rules  and  regulations  re- 
specting the  territory,  and  other  property  belonging  to  the 
United  States;  and  nothing  in  this  Constitution  shall  be 
so  construed  as  to  prejudice  any  claims  of  the  United 
States,  or  of  any  partictdar  state. 

§  404.  These  two  clauses  are  the  foundations  upon 
which  Congress  erect  and  administer  the  territorial 
governments,  and  subsequently  admit  them  into  the 
i  3  Story's  Comm.  677. 


THE  UNITED  STATES.  147 

Union.  Under  the  old  confederation,  no  s  ich  provision 
existed;  and  so  little  anticipation  was  had  of  the  growth 
and  prosperity  of  those  wild  regions  whose  population 
and  territory  have  since  nearly  doubled  the  states,  and 
more  than  quadrupled  their  strength,  that  no  provision 
existed  on  the  subject  of  forming  or  admitting  new  states. 
Since  the  adoption  of  the  Constitution,  however,  eleven 
new  states  have  been  added  to  the  Union,  and  three 
territories  will  soon  still  farther  increase  that  number. 
The  power  given  by  the  Constitution  to  do  this  is  one 
of  the  new  principles  introduced  into  our  system,  and  is 
perhaps  the  most  anomalous  and  most  influential  upon 
its  future  destiny  of  any.1  The  principle  is  simply  this, 
that  a  colony  settled  upon  an  adjacent  territory,  and 
within  the  jurisdiction  of  the  United  States,  whether  it 
be  composed  of  citizens  of  the  Union  or  emigrants  from 
foreign  nations,  Europeans,  or  Asiatics,  shall,  on  enu- 
merating a  specific  population,  be  admitted  to  equal 
rights,  privileges,  and  powers  with  the  original  states. 
This  principle  is  likewise  unlimited  in  respect  to  the 
number,  distance,  or  settlement  of  the  colonies.  The 
consequence  is,  that  the  original  states  may  ultimately, 
as  they  soon  must,  be  left  in  a  minority  as  to  power  in 
that  government  which  they  formed,  and  of  which  they 
were  the  sole  possessors.  They  make  the  whole  world 
partners  with  themselves,  in  an  inheritance  of  liberty 
and  power  and  wealth.  The  grant  thus  made  to  the 
world  of  an  asylum  for  all  mankind,  is  noble  and  benevo- 
lent, and  the  more  so,  as  it  seems  to  have  had  no  former 
example  among  nations.  It  may  be  said,  that  the  states 
thus  added  are  not  foreign:  it  is  true  they  were  not 
conquered,  but  they  are  just  as  subversive  of  the  powers 

1  Note. — All  the  nations  of  antiquity  held  immense  provinces,  which 
constituted  a  part  of  the  state,  for  purposes  of  revenue  and  armies, — but 
were  never  admitted  upon  terms  of  equality,  and  whose  inhabitants 
were  never  citizens.  The  idea  of  constituting  a  government,  to  be 
increased  as  to  the  source  of  law — by  its  own  colonisation,  or  by 
recruits  from  abroad,  is  wholly  new. 


148  CONSTITUTION    OI 

of  the  olc  states  as  if  they  had  been  taken  from  foreign 
countries.  In  the  case  of  Louisiana,  which  was  pur- 
chased, it  was  the  accession  of  foreign  territory ;  and  at 
the  time  the  territory  of  Orleans  was  erected  into  a 
state,  its  inhabitants  were  almost  wholly  Spanish  and 
French.  In  the  same  manner  the  territory  of  Florida 
is  an  accession  from  a  foreign  country;  and  so  also, 
should  the  government  hereafter  acquire  any  district  or 
territory  whatever,  according  to  the  existing  laws,  it 
would  first  become  an  organized  territory  of  the  United 
States,  and  then  a  state.  No  such  policy  as  this  was 
ever  adopted  by  any  other  country,  and  it  succeeds  and 
could  succeed  only  by  that  nice  system  of  balances  and 
toleration,  by  which  one  sect,  or  party,  or  state,  is 
constantly  checked  by  others,  and  the  elements  of 
discord  and  opposition  kept  from  any  general  union 
against  the  laws  and  the  government.  It  must  be 
observed,  however,  as  what  may  hereafter  be  of  im- 
portance, that  the  term  used  in  the  Constitution,  as 
to  the  admission  of  states,  is  may,  and  not  shall. 
Hence,  it  is  not  imperative  in  the  government  of  the 
United  States  to  admit  new  states  whenever  they  may 
demand  it.  The  Constitution  has,  in  the  next  clause, 
provided  for  the  government  of  Territories,  and  the 
Congress  may  undoubtedly  keep  all,  not  provided  for 
by  the  ordinance  of  1787,  as  territories  forever. 

§  405.  In  respect  to  the  formation  of  states  and  the 
territorial  governments,  the  power  was  exercised  by 
Congress  before  the  Constitution  was  formed,  and  with- 
out any  article  in  the  confederation  to  authorize  it.  The 
whole  of  what  was  called  the"  North-western  Territory, 
ceded  by  Virginia  to  the  United  States,  and  out  of 
which  has  been  carved  the  states  of  Ohio,  Indiana 
Illinois,  and  the  territory  of  Michigan, — was  placeo 
under  a  territorial  government,  and  governed  by  the 
ordinance  of  1787-1  That  ordinance  was,  in  many  re- 
»  Act  of  Congress,  1787. 


THE    UNITED    STATES.  ]49 

spects,  wisely  drawn,  and  has  had  great,  and  not  less 
certain,  because  unseen,  influence,  upon  the  prosperity 
and  happiness  of  that  immense  and  now  populous  dis- 
trict.1 

§  406.  The  articles  of  compact  solemnly  tendered  to 
the  people  of  the  states  about  to  be  formed,  and  thus  far 
accepted  by  them, — contained  some  remarkable  pro- 
visions.    Among  these  articles  are, 

1st,  An  agreement  that  said  territory,  and  the  states 
which  may  be  formed  therein,  shall  forever  remain  a 
part  of  this  confederacy,  subject  to  the  articles  of  con- 
federation, and  to  such  alterations  as  may  be  made  therein. 
This  part  of  the  compact,  as  will  be  seen  hereafter,  has 
an  important  bearing  upon  the  recently  agitated  ques- 
tion of  secession. 

2d,  And  it  is  further  provided,  that  there  shall  be  nei- 
ther slavery  nor  involuntary  servitude  in  the  said  territory. 

3d,  And  farther,  that  whenever  any  of  the  said  ter- 
ritories shall  contain  sixty  thousand  free  inhabitants,  it 
shall  be  admitted  into  the  Union  upon  an  equal  footing 
with  the  original  states.2 

§  407.  The  power  of  Congress  over  the  public  terri- 
tory is  exclusive  and  universal,  except  so  far  as  they  are 
restrained  by  stipulations  in  the  cessions,  or  by  the  ordi- 
nance of  1787-3  This  is  not  the  case,  however,  with 
merely  national  property,  such  as  forts  and  arsenals, 
where  the  states  have  not  ceded  the  jurisdiction:  in 
such  cases,  the  jurisdiction  of  the  state  continues;  sub- 
ject, however,  to  the  just  exercise  of  the  proper  powers 
of  the  national  government. 

1  Note. — The  North-west  Territory,  ceded  by  Virginia  to  the  United 
States,  and  included  within  the  ordinances  of  1767,  contained  the  states 
of  Ohio,  Indiana,  Illinois,  and  the  Territory  of  Michigan.  They  now 
contain  more  than  4,500,000  inhabitants,  and  have  derived  the  whole 
vigor  and  spirit  of  their  institutions,  and  the  direction  of  their  policy 
and  views,  from  the  ordinance  above  cited.  How  important  and  lasting 
are  the  acts  of  early  legislators ! 

2  The  entire  ordinance  will  be  found,  page  228,  at  the  end  of  the 
book.  3  Story's  Comm.,  198. 


150  CONSTITUTION    OF 

§  408.  In  the  year  1820,  upon  the  admission  of  the 
state  of  Missouri  into  the  Union,  a  question  was  raised, 
whether  a  clause  restricting  the  admission  of  slaves  into 
the  state  was  constitutional.  That  question  was  not 
directly  decided,  but  it  was  indirectly  by  the  act  passed,1 
which  declared  that,  in  all  the  territory  north  of  lat.  36 
deg.  30  min.,  not  included  within  the  limits  of  Missouri, 
slavery  and  involuntary  servitude  should  for  ever  be 
prohibited. 

§  409.  The  question  may,  however,  be  considered  as 
settled  long  before  by  the  enactment  of  the  ordinance 
of  1787,  under  the  confederation,  and  the  subsequent 
adoption  and  continuance  of  its  provisions  under  the 
Constitution. 

§  410.  An  objection  involving  the  same  principle 
was  made  to  the  compact  between  Virginia  and  Ken- 
tucky, but  at  once  overruled  by  the  Supreme  Court.2 

Section  4th.  The  United  States  shall  guaranty  to 
every  state  in  this  Union  a  Republican  form  of  govern- 
ment, and  shall  protect  each  of  them  against  invasion, 
and,  on  the  application  of  the  Legislature,  or  of  the  Exe- 
cutive (when  the  Legislature  cannot  be  convened),  against 
domestic  violence. 

This  clause  was  unanimously  adopted  by  the  con- 
vention, and  seems  essential  to  the  well-being  of  the 
republic,  because  the  whole  republic  could  not  exist,  if 
a  different  form  of  government  was  allowed  to  exist  in 
either  one  of  the  states.  This  clause  is  intended  to 
prevent  such  a  change  either  by  a  powerful  faction,  a 
rebellion,  or  any  other  cause. 

The  phrase  "  guaranty  a  Republican  form  of  govern- 
ment"-^-" protect" — against  "invasion" — or  "domestic 
violence ;" — covers,  and  was  manifestly  meant  to  cover 
every  condition  of  Treason, — Rebellion, — Insurrection, 
— Servile  Wars, — or  Tumult,  which  could  possibly  be 

i  Act  of  Congress,  March  6,  1820. 

2  Green  vs.  Biddle,  8  Wheaton,  1, 87, 88. 


THE    UNITED    STATES.  151 

imagined  against  the  peace  or  government  of  a  State. 
It  covered  every  thing  not  covered  by  municipal  legisla- 
tion. The  Constitution  has  already  taken  from  the  states 
the  power  to  keep  troops,  and  ships  of  war,  and  conse- 
quently, efficiently  to  suppress  insurrections.  Hence,  it 
was  necessary  for  the  United  States  to  assume  their 
defence. 


ARTICLE  V. 

§  411.  Tfie  Congress,  whenever  two-thirds  of  both 
Houses  shall  deem  it  necessary,  shall  propose  amend- 
ments to  this  Constitution,  or,  on  the  application  of  the 
legislatures  of  two-thirds  of  the  several  states,  shall  call 
a  convention  for  proposing  amendments,  which,  in  either 
case,  shall  be  valid  to  all  intents  and  purposes,  as  part 
of  this  Constitution,  when  ratified  by  the  legislatures  of 
three-fourths  of  the  several  states,  or  by  conventions  in 
three-fourths  thereof,  as  the  one  or  the  other  mode  of  rati- 
fication may  be  proposed  by  the  Congress;  provided  that 
no  amendment,  which  may  be  made  prior  to  the  year  one 
thousand  eight  hundred  and  eight,  shall  in  any  manner 
affect  the  first  and  fourth  clauses  in  the  ninth  section  of 
the  first  article;  and  that  no  state,  without  its  consent, 
shall  be  deprived  of  its  equal  suffrage  in  the  Senate. 

§  412.  This  article  provides  that  amendments  may 
be  made  to  the  Constitution,  and  also  points  out  the 
manner  of  making  them.     From  this  two  things  follow : 

1st.  That  amendments  made  in  accordance  with  the 
provisions  of  this  article,  become  of  the  same  binding 
authority  as  if  they  had  formed  a  part  of  the  original 
instrument. 

2d.  That  no  amendment  can  be  made  except  in  the 
way  here  pointed  out. 

The  amendments  do  not  require  the  assent  of  the  Presi- 


152  CONSTITUTION    OF 

dent; — for,  when  proposed  by  two-thirds  of  Congr ess, and 
ratified  by  three-fourths  of  the  States, — they  are  valid 

§  413.  There  are  three  limitations  to  the  power  of 
making  amendments: 

1st.  That  the  prohibition  of  Congress  to  pas's  any  law 
prior  to  the  year  eighteen  hundred  and  eight,  forbidding 
the  introduction  of  slaves,  should  not  be"  removed. 

2d.  That  the  mode  of  levying  a  capitation  or  direct 
tax  should  not  be  changed  so  long  as  slave  property 
could  be  increased  by  importation. 

3d.  That  no  state  should  be  deprived,  without  its 
consent,  of  its  equal  representation  in  the  Senate. 

The  first  restriction  was  adopted  as  a  matter  of  com- 
promise, and  to  ensure,  for  a  limited  time,  the  continu- 
ance of  a  profitable  traffic.  The  second  necessarily 
grew  out  of  the  first;  for  it  would  obviously  have  been 
unjust  to  change  the  mode  of  laying  taxes  while  the 
property  exempted  from  taxation  could  have  been  in- 
creased at  pleasure,  by  importation.  The  third  restric- 
tion was  intended  to  ensure  to  the  lesser  states  an  ef- 
fective safeguard  against  encroachments  from  the  larger; 
and  being  placed  in  the  Constitution  itself,  it  cannot  bo 
broken  down. 


ARTICLE  VI. 

§  414.  1st  clause.  All  debts  contracted,  and  engage- 
ments  entered  into,  before  the  adoption  of  this  Constilu- 
tion,  shall  be  as  valid  against  the  United  States,  under 
this  Constitution,  as  under  the  Cor  federation. 

The  obligations  between  a  nation  and  private  indi- 
viduals remain  the  same,  whatever  changes  the  form  of 
government  may  undergo.2 

§  415.  2d  clause.  This  Constitution,  and  the  laws  of 
l  3  Dallas,  378.  2  Federalist,  43. 


THE    UNITED    STATES.  153 

the  United  States,  which  shall  be  made  in  pursuance 
thereof,  and  all  treaties,  made,  or  which  shall  be  made 
under  the  authority  of  the  United  States,  shall  be  the  su- 
preme law  of  the  land;  and  the  judges  in  every  state 
shall  be  bound  thereby;  any  thing  in  the  Constitution,  or 
laws  of  any  state  to  the  contrary  notwithstanding. 

§  416.  The  necessity  of  this  provision  is  obvious 
enough.  If  the  Constitution  were  not  the  supreme  law 
of  the  land  it  would  not  be  a  Constitution;  it  would  be 
a  nullity:  its  supremacy  makes  a  part  of  the  instrument 
itself;  yet  it  was  necessary  to  declare  it,  in  order  that 
all  might  understand  it,  and  no  room  be  left  for  contro- 
versy. Treaties  are  supreme  laws  till  repealed  by  the 
legislature  of  the  nation:  the  legislature  has  such 
power,  though  war  may  be  the  consequence  of  its  exer- 
cise.1 Treaties  are  compacts  with  foreign  nations,  and 
must  be  observed,  or  the  national  faith  is  violated. 

§  417.  The  laws  of  the  United  States,  if  made  in 
pursuance  of  the  Constitution,  are  as  valid  as  the  Con- 
stitution, and  of  course  also  the  supreme  law.  To 
these  provisions  it  is  added,  "any  thing  in  the  Constitu- 
tion, or  laws  of  any  state  to  the  contrary  notwithstand- 
ing." This  clause  gave  no  additional  force  to  the  fore- 
going provisions,  but  made  them  clearer  to  those  who 
administer  the  laws.  Another  thing  clearly  appears 
from  the  whole  clause,  that  the  Constitution  makes  the 
national  government  supreme  over  the  state  constitution 
and  laws  in  all  cases  in  which  they  may  come  in  con- 
flict. As  the  Constitution  is  thus  supreme,  every  court 
has  the  power  to  declare  unconstitutional  laws  void, 
when  properly  before  them.2 

§418.  3d  clause.  The  senators  and  representatives 
before  mentioned,  and  the  members  of  the  several  state 
legislatures,  and  all  executive  and  judicial  officers,  both 
of  the  United  States  and  of  the  several  states,  shall  be 
bound  by  an  oath,  or  affirmation,  to  support  this  Consti- 

»2  Cranch,  1 ;  3  Story's  Coram.  695.  2  1  Kent's  Comm.  420. 


154  CONSTITUTION    OF 

tution;  but  no  religious  test  shall  ever  be  required  as  a 
qualification  to  any  office  or  public  trust  under  the  United 
States. 

§  419.  This  oath  is  required  in  all  civilized  nations 
from  the  officers  of  government;  it  is  the  most  solemn 
obligation  men  can  be  placed  under,  and  it  is  right  to 
require  it  of  them  in  a  class  of  duties  as  important  as 
any  that  can  be  performed  in  a  social  state.  It  is  to  be 
remarked,  that  this  oath  is  required  of  all  state,  as  well 
as  national  officers ;  for  the  agency  of  state  officers  is  re- 
quired to  carry  on  the  national  government,  and  they 
are  accordingly  required  to  give  their  obligations  to 
perform  it. 

§  420.  In  June,  1789,  Congress  passed  an  act1  pre- 
scribing the  time  and  manner  of  taking  the  oath  or  af- 
firmation, as  well  by  the  officers  of  the  several  states 
as  of  the  United  States.  Some  doubts  were  entertain- 
ed of  its  constitutionality,  but  it  was  approved,  and  no 
doubt  is  now  had  upon  it.2 

§  421.  The  clause  which  enacts  that  no  religious 
test  shall  ever  be  required  for  any  office  of  trust  or 
profit,  is  one  of  the  most  peculiar,  as  well  as  valuable 
parts  of  the  Constitution.  This  is  believed  to  be  the 
only  government  in  the  world  which  permitted  perfect 
toleration,  and  the  experience  of  half  a  century  has 
proved  that  it  offers  no  hindrance  to  any,  while  it  af- 
fords protection  to  all  religious  sects.  While  this  exists, 
there  can  be  no  union  of  Church  and  State, — a  union 
fatal  to  both,  and  dasastrous  to  the  welfare  of  the  peo- 
ple. Yet  Christianity  flourishes  and  extends  in  the 
United  States  with  the  growth  of  the  people,  and  tho 
very  emulation  of  the  different  sects  contributes  to  the 
prosperity  of  the  whole. 

*  Act  1st  June,  1789. 

*  4  Elliott's  Debates,  139;  4  Wheaton's  Rep.  415. 


THE    UNITED    STATES.  155 

ARTICLE  VII. 

§  422-  rITie  ratification  of  the  conventions  of  nine 
states  shall  be  sufficient  for  the  establishment  of  this 
Constitution  between  the  states  so  ratifying  the  same. 

At  the  formation  of  the  Constitution,  there  were  thir- 
teen states;  nine  of  these  ratified  it  immediately,  three 
after  the  lapse  of  a  few  months,  and  the  state  of  Rhode 
Island  not  till  more  than  a  year  afterward.  The  instru- 
ment was,  however,  perfect  by  the  ratification  of  nine,  and 
if  the  others  had  not  acceded,  they  would  have  stood  in 
the  relation  to  them  of  foreign  nations.  Since  that  period, 
eleven  others  have  joined  the  union,  and  the  whole  form 
one  great  nation  under  a  common  government. 


AMENDMENTS. 

§  423.  Upon  the  adoption  of  the  Constitution,  strong 
objections  were  made  to  it  on  account  of  some  supposed 
deficiencies.  Among  others,  the  want  of  a  Bill  of 
Rights  was  strongly  urged,  to  which  it  was  justly  re- 
plied, that  the  Constitution  itself  was  a  bill  of  rights. 
The  people,  in  their  conventions,  however,  finally 
thought  best  to  accede  to  the  Constitution,  and  urge 
upon  Congress  the  proposal  of  several  amendments. 
Accordingly,  the  amendments  we  have  already  mention- 
ed, those  following,  and  some  that  were  not  adopted, 
were  recommended  by  many  of  the  states  to  Congress, 
and  by  Congress  to  the  people.  ■» 

AMENDMENT   I. 

§  424-  Congress  shall  make  no  law  respecting  an  estab- 
lishment of  religion,  or  prohibiting  the  free  exercise 
thereof;  or  abridging  the  freedom  of  speech,  or  of  the 
press;  or  of  the  right  of  the  people  peaceably  to  assemble, 
and  to  petition  the  government  for  a  redress  of grievances , 


156  CONSTITUTION    OF 

The  first  clause  was  undoubtedly  meant  to  prohibit 
Congress  from  interfering  in  any  manner  between  dif- 
ferent sects  of  Christianity,  and  not  to  encourage  any 
other  religion.  For  nearly  all  the  old  states  had  laws 
for  the  encouragement  of  religion;  at  the  same  time, 
Congress  has  no  power  to  do  the  slightest  positive  act 
to  sustain  or  prohibit  any  religion  whatever.  It  is  a 
subject  upon  which  they  are  forbidden  to  legislate.  In 
this  respect  the  United  States  Constitution  is  wholly  un- 
like any  other  ever  formed.  It  derives  no  aid  from  its 
connexion  with  religion,  but  leaves  that  to  be  settled  by 
conscience  and  its  God. 

§  425.  The  next  clause  is,  that  Congress  shall  make 
no  law  abridging  the  freedom  of  speech  or  of  the  press. 
What  is  the  freedom  of  speech  and  of  the  press  ?  It 
is  the  right  to  speak  and  publish  every  thing  in  relation 
to  every  subject,  which  is  not  in  derogation  of  private 
rights.  No  one  has  a  right  to  injure  his  neighbor:  this 
is  the  first  law  of  society,  and  everywhere  preserved  in 
the  civil  state;  of  consequence,  no  one  has  a  right  to  speak 
or  publish  what  will  injure  another;  hence  the  law  of 
slander  and  of  libel.  Within  these  limits  it  is  not  per- 
ceived that  there  is  any  restraint  upon  the  liberty  either 
of  speech  or  of  the  press. 

§  426.  The  next  clause  is,  the  people  shall  have  the 
right  peaceably  to  assemble  and  petition  for  a  redress 
of  grievances.  This  seems  to  have  been  altogether  a 
work  of  supererogation;  for  the  right  of  the  people  to 
assemble,  either  to  petition,  or  for  any  other  purpose, 
arises  necessarily  from  the  form  of  government. 

AMENDMENT    II. 

§  427.  A  well  regulated  militia  being  necessary  to 
the  security  of  a  free  state,  the  right  of  the  people  to 
keep  and  bear  arms  shall  not  be  infringed. 

The  term  militia  is  a  Latin  word,  and  signifies  the 
being  a  soldier.     In  our  country  it  is  applied  only  to  that 


THE    UNITED    STATES.  157 

species  of  soldiery  which  is  composed  wholly  of  en- 
rolled citizens,  held  ready  for  service,  but  not  actually 
under  arms.  It  is  scarcely  necessary  to  say,  that  the  right 
of  the  people  thus  to  bear  arms  is  the  foundation  of  their 
liberties;  for,  without  it,  they  would  be  without  any 
power  of  resistance  against  the  existing  government. 

AMENDMENT    III. 

§  428.  No  soldier  shall,  in  time  of  peace,  be  quar- 
tered in  any  house  without  the  consent  of  the  owner,  nor 
in  time  of  war,  but  in  a  manner  to  be  'prescribed  by  laic. 

It  was  an  easy  mode  of  oppression,  with  arbitrary 
princes,  to  quarter  soldiers  upon  the  people,  so  that  they 
ate  out  their  substance  and  ill  treated  their  families.  It 
was  to  prevent  the  possibility  of  such  scenes  in  this  coun- 
try that  this  provision  was  inserted  in  the  Constitution. 

AMENDMENT    IV. 

§  429.  The  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers,  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated;  and  no  war- 
rant shall  issue  but  upon  probable  cause,  supported  by 
oath,  or  affirmation,  and  particularly  describing  the  place 
to  be  searched,  and  the  persons  or  things  to  be  seized. 

Special  warrants,  such  as  here  described,  are  the  only 
warrants  upon  which  an  arrest  can  be  made  according 
to  the  law  of  England.1  This  provision,  therefore,  was 
in  affirmance  of  the  Common  Law,  and  introduced  into 
the  Constitution  for  more  abundant  caution. 

§  430-  Amendments  5th,  6th,  and  7th,  in  relation  to 
the  trial  by  jury,  and  the  mode  of  indictment,  we  have 
already  considered  in  connexion  with  another  part  of 
the  Constitution. 

AMENDMENT     VIII. 

§  431.  Excessive  bail  shall  not  be  required,nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments  inflicted. 

i  3  Burrow's  Rep.  1743;  4  Blackstone's  Comm.  291,  292. 
14 


158  CONSTITUTION    OF 

Excessive  bail,  and  cruel  punishments,  weie  another 
class  of  means  used  by  arbitrary  governments  to  op- 
press the  people;  hence  the  insertion  of  this  amend- 
ment. 

It  has  been  held  that  this  clause  applies  only  to  pun- 
ishments inflicted  by  the  national  government,  and  not 
to  those  inflicted  by  the  states.1 

AMENDMENT   IX. 

§  432-  The  enumeration  in  the  Constitution  of  certain 
rights,  shall  not  be  construed  to  deny  or  disparage  others 
retained  by  the  people.         « 

This  was  merely  meant  to  prevent  the  application  to 
the  Constitution  of  a  maxim,  that  the  affirmation  of  cer- 
tain things,  in  some  cases,  implies  a  denial  of  others. 

AMENDMENT    X. 

§  433.  The  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  states, 
are  reserved  to  the  states  respectively,  or  to  the  people. 

This  provision  follows  of  course,  without  express 
insertion,  from  the  fact  that  the  Constitution  is  an  in- 
strument of  enumerated  powers,  ana  those  not  expressly 
given  in  it,  or  necessarily  flowing  from  them,  are  re- 
tained by  the  original  source  of  power,  or  invested  in 
collateral  and  inferior  governments.  Now,  what  is  this 
source  of  power?  The  people.  It  must  be  recollected, 
that  both  national  and  state  governments  are  formed 
by,  and  derive  their  authority  from,  the  people,-  hence, 
whatever  powers  they  have  not  invested  in  the  national 
government,  must  either  be  granted  to  the  state  govern- 
ments, or  retained  by  themselves ;  therefore,  the  words 
of  the  provision,  "reserved  to  the  states  respectively,  or 
to  the  people." 

§434.  Amendment  11th,  in  relation  to  the  judicial 
power,  and  12th,  in  relation  to  the  Presidential  election, 
have  been  already  considered. 

»  3  Cowen's  New-York  Rep.  686;  3  Story's  Cotnin.  751. 


THE    KATIFHJATION    OP  159 

CHAPTER  III. 

THE   RATIFICATION   OF   THE    CONSTITUTION. 

§  435-  We  have  now  seen  what  the  Constitution  is, 
and  in  connexion  with  that,  what  constructions  have  been 
put  upon  its  various  clauses,  and  what  decisions  have 
been  had  under  it  by  the  judicial  authority.  It  is  im- 
portant that  we  should  now  look  at  the  mode  in  which 
it  was  ratified,  and  what  opinions  were  declared  by  the 
ratifying  power,  as  to  what  were  the  rights  vested  in 
the  national  government. 

§  436.  When  the  Convention  had  formed  the  Consti- 
tution, they  by  resolution1  directed  it  to  be  "  laid  before 
the  United  States  in  Congress  assembled,"  and  declared 
their  opinion  that  it  should  afterward  "be  submitted  to 
a  convention  of  delegates,  chosen  in  each  state  by  the 
people  thereof,  under  a  recommendation  of  its  legisla- 
ture, for  their  assent  and  ratification;"  and  that  each 
convention  assenting  thereto,  and  ratifying  it,  should 
notify  Congress  thereof. 

§  437.  Accordingly,  Congress  having  received  the 
report  of  the  convention, — 2  Resolved,  that  the  report, 
resolutions,  and  letter  accompanying  them,  be  trans 
mitted  to  the  several  legislatures,  to  be  by  them  sub- 
mitted to  a  convention  of  delegates  chosen  in  each  state 
by  the  people  thereof  in  conformity  to  the  resolve  of 
the  convention,  &c.  &c. 

§  438.  Under  this  resolution  of  Congress,  the  states 
called  conventions  of  the  people,  and  the  Constitution 
being  submitted  to  them,  was  ratified  successively  by  all 
of  them,  and  the  Constitution  became  the  supreme  law 
of  the  land. 

»  4  Elliott's  Debates,  248.  *  Idem. 


1(30  THE    CONSTITUTION. 


ORDER    AND    MANNER    OP    RATIFICATION. 

§  439.  1st.  irThe  first  state  which  ratified  the.  Con- 
stitution was  Delaware,  which  did  so  on  the  7th  Decem- 
ber, 1787, — without  condition  or  the  recommendation 
of  an  amendment. 

§  440.  2d.  2  The  second  was  Pennsylvania,  which, 
in  like  manner,  without  any  declaration  or  recommenda- 
tion, ratified  it  on  the  12th  of  December,  1787. 

§  441.  3d.  The  next  was  New-Jersey,  which  ratified 
on  the  18th  December,  1787?  as  is  declared  in  their 
ratification,  by  the  unanimous  consent  of  all  the  mem- 
bers. 

§  442.  4th.  3The  fourth  was  Connecticut,  which 
likewise  ratified  without  any  declaration,  on  the  9th 
January,  1788. 

§  443.  5th.  4The  next  was  Georgia,  which  ratified, 
without  condition  or  resolution. 

§  444.  6th.  The  sixth  was  Massachusetts.  In  th& 
convention  of  this  state,  there  was  much  opposition5  to 
the  Constitution,  and  at  first  a  majority  against  it.  In 
consequence  of  this,  it  was  finally  ratified  with  the 
declaration  of  the  convention,  that  in  their  opinion,  cer- 
tain amendments  and  alterations  were  necessary  to 
remove  the  fears,  and  quiet  the  apprehensions  of  many 
of  the  good  people  of  that  commonwealth. 

The  amendments  recommended  were  as  follows, 
viz  :a 

1 .  That 7  it  be  declared  that  all  powers  not  expressly 
delegated  by  the  Constitution  should  be  reserved  to  the 
several  states,  to  be  by  them  exercised. 

2.  That  there  should  be  one  representative  to  each 

>  Elliott's  Deb.  vol.  4,  p.  207.  *  Idem.  202.  » idem.  209.  *  Idem.  212. 

s  2  Pitkin's  Civ.  Hist.,  266.      6  4  Elliott's  Debates,211. 

'Note. — Whenever  resolutions  or  other  proceedings  are  given  in  this 
work,  except  in  the  case  of  the  Constitution,  they  are  set  forth  substrnv- 
tially. 


TIIK    RATIFICATION    OF 


161 


thirty  thousand  persons,  until  the    whole    number  of 
persons  amounted  to  two  hundred. 

3.  That  Congress  should  not  exercise  the  power  of 
making  regulations  for  electing  members  of  Congress, 
unless  the  states  neglected  to  make  such  regulations,  or 
made  them  subversive  of  a  free  and  equal  represen- 
tation. 

4.  That  Congress  do  not  lay  direct  taxes,  but  when 
the  funds  arising  from  impost  and  excise  are  insufficient, 
nor  then  till  they  have  first  made  a  requisition  on  each 
of  the  states  for  their  quota,  and  the  states  have  neg 
lected  or 'refused  to  pay  their  proportion. 

5.  That  Congress  erect  no  company  of  merchants 
with  exclusive  advantages. 

6.  That  no  person  be  tried  for  a  crime,  or  suffer  an 
infamous  punishment,  or  loss  of  life,  except  in  the  mili- 
tary or  naval  service,  without  indictment  by  a  grand 

JU1T- 

7.  The  United  States  Judiciary  shall  have  no  juris- 
diction of  causes  between  citizens  of  different  states, 
unless  the  matter  in  dispute  extend  to  $3000,  nor  the 
judicial  power  extend  to  actions  between  citizens  of 
different  states  when  the  matter  is  not  of  the  value  of 
$1500. 

§  445.  8.  In  civil  actions  between  citizens  of  differ- 
ent states,  issues  of  fact  at  common  law  shall  be  tried 
by  jury,  if  the  parties  request  it. 

9.  Congress  shall  not  consent,  that  any  person  hold- 
ing an  office  of  profit  or  trust  under  the  United  States 
shall  receive  any  title  or  office  from  a  king,  prince,  or 
foreign  state. 

§  446.  With  the  recommendation  of  these  amend- 
ments, Massachusetts,  after  great  opposition,1  ratified  the 
Constitution  on  the  7th  of  February,  1788. 

§  447-  It  will  be  seen  in  the  Constitution,  that  the 
sixth  recommendation  in  relation  to  Indictments  is  im- 
»  4  Elliott's  Debates,  212. 


102  THE    CONSTITUTION. 

bodied  in  the  fifth  amendment  to  the  Constitution,  and 
that  the  eighth  recommendation  is  included  in  the  seventh 
amendment.  With  the  exception  of  these  two,  none  of 
the  recommendations  were  ever  adopted. 

§  448.  7th.  irPhe  seventh  state  to  ratify  the  Consti- 
tution was  Maryland.  This  was  done  without  any  col- 
lateral resolutions,  on  the  28th  of  April,  1788. 

§  449.  8th.  The  next  was  the  state  of  South  Caro- 
lina, which  ratified  on  the  23d  of  May,  1788.  Accom- 
panying their  recommendation  also,  were  several  reso- 
lutions, the  substance  of  which  is  as  follows ;  viz. 

1.  The  first  resolution  was  the  same  as  the  third  of 
Massachusetts,  in  relation  to  the  power  of  Congress  to 
regulate  the  elections  of  its  members. 

2.  The  second  was  the  same  as  the  first  of  Massa- 
chusetts, in  relation  to  the  powers  not  expressly  granted. 

3.  The  third  was  the  same  as  the  fourth  of  Massa- 
chusetts, in  relation  to  direct  taxes. 

4.  The  fourth  was  a  verbal  criticism  on  the  third 
section  of  the  sixth  article. 

5.  The  fifth  made  it  a  standing  instruction  to  the 
delegates  from  that  state  to  endeavor  to  have  these  al- 
terations made. 

None  of  these  proposed  amendments  were  ever  made. 

§  450.  9th.  2Th'e  ninth  state  which  ratified,  and 
which  made  up  the  number  which  was  necessary  to  put 
the  Constitution  in  operation,  was  New-Hampshire; 
this  took  place  on  the  21st  of  June,  1788.  In  the  con- 
vention of  this  state,  as  in  Massachusetts,  there.was  great 
opposition  to  the  Constitution,  and  their  ratification  was 
accompanied  with  the  following  recommendations. 

1.  The  first  is  the  same  as  those  of  Massachusetts 
and  South  Carolina,  in  relation  to  powers  not  expressly 
delegated. 

2.  The  second  is  the  same  as  the  second  of  Massa- 
chusetts. 

»  Elliott's  Debates,  213.  *  4  Idem,  214. 


THE   RATIFICATION    OF  163 

3.  The  third,  fourth,  fifth,  sixth,  seventh,  eighth,  and 
ninth  alterations  proposed  are  the  same  with  the  cor- 
responding ones,  proposed  by  Massachusetts.  In  fact, 
as  far  as  the  tenth,  the  New-Hampshire  propositions 
seem  to  have  been  a  literal  copy  from  those  of  Massa- 
chusetts. 

10.  The  tenth  was,  that  no  standing  army  should  be 
kept  in  time  of  peace,  without  the  consent  of  three- 
fourths  of  both  branches  of  Congress,  nor  shall  soldiers 
in  time  of  peace  be  quartered  upon  private  houses  with- 
out the  consent  of  owners. 

11.  Congress  shall  make  no  laws  touching  religion, 
nor  infringe  the  rights  of  conscience. 

12.  Congress  shall  not  disarm  citizens  unless  such 
as  have  been  in  rebellion. 

The  latter  part  of  the  tenth  alteration  proposed  is 
embraced  in  the  third  amendment  to  the  Constitution. 
The  eleventh  is  included  in  the  first  amendment  to  the 
Constitution.  The  twelfth  is  the  second  amendment. 
§451.  10th.  The  tenth  state  in  the  order  of  ratifica- 
tion was  Virginia,  which  ratified  on  the  26th  June,  1788. 
In  this  state  also  there  was  much  opposition,  and  their 
ratification  was  accompanied  by  a  declaration  of  rights, 
in  substance  as  follows ;  viz. 

That  the  people  may  resume  the  powers  of  govern- 
ment, when  they  are  perverted  and  abused  to  their  in- 
jury and  oppression ;  that  every  power  not  granted  re- 
mains with  them  and  at  their  will;  that  no  right  can  be 
cancelled,  abridged,  or  restrained  by  Congress,  the 
President,  or  any  department  or  officer  of  the  United 
States,  except  where  the  power  is  given  by  the  Consti- 
tution for  these  purposes;  and  that  the  rights  of  con- 
science and  of  the  press  cannot  be  so  restrained,  modi- 
fied, or  cancelled. 

This  declaration  contained  the  substance  of  many  of 
the  resolutions  offered  by  other  states;  and  we  shall 
»  4  Elliott's  Debates,  215. 


1(54  THE    CONSTITUTION. 

*ee,  in  the  course   of  this  chapter,  the  portion  of  them 
which  was  adopted. 

§  452.  11th.  Thr,  rleventh  state  adopting  the  Con- 
stitution was  New- York.  Their  ratification  was  made  on 
the  26th  July,  in  the  year  1788.  It  was  accompanied 
by  a  long  declaration  of  rights,  and  a  series  of  proposed 
amendments. 

In  addition  to  the  amendments  already  proposed  by 
other  states,  there  were  the  following: — 

That  Congress  should  not  impose  an  excise  on  any 
article  of  the  growth,  production,  or  manufacture  of  the 
United  Stales. 

That  no  person  should  be  eligible  as  President,  Vice- 
Presideit,  or  member  of  Congress,  who  was  not  a  nat- 
ural born  citizen,  or  a  citizen  on  the  4th  of  July,  1776, 
or  held  a  commission  under  the  United  States  during 
the  war,  and  became  citizens  subsequently,  and  who 
fsha'l  be  freeholders. 

That  to  borrow  money,  or  declare  war,  two-thirds  of 
the  senators  and  representatives  present  must  concur. 

That  the  privilege  of  Habeas  Corpus  shall  not  be 
suspended  for  a  longer  time  than  six  months,  or  until 
twenty  days  after  the  meeting  of  the  next  Congress. 

That  the  right  of  exclusive  jurisdiction  over  ten  miles 
square  shall  not  exempt  its  citizens  from  paying  the 
same  taxes  that  other. citizens  do,  nor  privilege  them 
from  arrest  for  crimes  committed,  or  debts  contracted 
without  the  district. 

That  the  right  of  exclusive  jurisdiction  over  certain 
public  places  shall  not  authorize  Congress  to  prevent 
the  operation  of  the  state  laws  in  civil  and  criminal 
matters,  except  as  to  persons  in  the  employ  of  the 
United  States,  nor  as  to  them,  in  respect  to  crimes. 

That  the  compensation  of  members  of  Congress  be 
fixed  by  standing  laws,  and  no  alteration  operate  for 
the  benefit  of  members  making  it. 

1 4  Elliott's  Debates,  216. 


THE    RATIFICATION    OF  1Q5 

That  the  Journals  of  Congress  shall  be  published  at 
least  once  a. year,  except  such  parts  as  may  require 
secrecy;  that  they  shall  keep  their  doors  open;  and 
that  two  members  may  require  the  yeas  and  nays. 

That  no  capitation  tax  shall  be  laid. 

That  no  person  shall  be  senator  more  than  six  years 
out  of  twelve;  that  the  legislatures  may  recall  their 
senators  and  elect  others. 

That  no  member  of  Congress  shall,  during  the  time 
for  which  he  was  elected,  be  appointed  to  any  office 
under  the  United  States. 

That  the  power  of  Congress  to  pass  bankrupt  laws 
should  only  extend  to  merchants  and  traders,  and  that 
the  states  have  power  to  pass  other  insolvent  laws. 

That  no  person  be  eligible  as  President  a  third  time. 

That  the  executive  shall  not  grant  pardons  for  trea- 
son without  the  consent  of  Congress,  but  may  reprieve 
them  till  heard  by  Congress. 

That  the  President,  or  person  acting  as  such,  shall 
not  command  the  army  in  the  field  unless  by  desire  of 
Congress. 

That  all  letters  patent,  commissions,  writs,  &c, 
should  run  in  the  name  of  "the  People  of  the  United 
States,"  and  be  tested  in  the  name  of  the  President  of 
the  United  States,  or  the  first  judge  of  the  court  out  of 
which  process  shall  issue. 

That  Congress  should  constitute  no  inferior  tribunals 
with  appellate  power,  except  such  as  are  necessary  for 
admiralty  and  maritime  jurisdiction,  and  in  other  cases 
where  the  jurisdiction  is  not  original,  causes  shall  be 
tried  by  the  state  courts,  with  a  right  of  appeal  to  the 
Supreme  Court. 

That  the  court  for  the  trial  of  impeachments  shall 
consist  of  the  Senate,  the  judges  of  the  Supremo 
Court,  and  the  chief  judge  of  the  highest  court  in  each 
state. 

That  no  jvdge  of  the  Supreme  Court  shall  hold  any 


166  THE    CONSTITUTION. 

other  office  under  the  government  of  the  United  States, 
or  any  of  them. 

That  the  militia  shall  not  be  compelled  to  serve  out 
of  the  state  for  more  than  six  weeks,  without  the  con- 
sent of  the  legislature. 

None  of  these  propositions  were  adopted,  but  taken 
in  connexion  with  the  amendments  proposed  by  other 
states,  they  show  what  construction  was,  at  the  time, 
placed  upon  some  of  the  most  important  clauses  of  the 
Constitution. 

§453.  12th.  »  The  twelfth  state  which  ratified  the  Con- 
stitution was  North  Carolina,  on  the  21st  of  November, 
1789.  In  this  state,  also,  there  was  great  opposition, 
and  a  resolution  was  passed,  declaring  that  a  bill  of 
rights  should  be  annexed  to  the  Constitution,  and  sev- 
eral amendments  adopted. 

§  454-  The  ratification  of  New-Hampshire,  the  ninth 
in  order,  was  received  by  Congress  on  the  2d  of  July, 
1788.  They  then  appointed  a  committee  to  report  an 
act  to  put  the  Constitution  into  operation.  Under  that 
act  the  Constitution  went  into  operation  on  the  4th  of 
March,  1789.  It  has  been  seen  that  North  Carolina 
did  not  ratify  till  November,  so  that  the  first  election  of 
President  was  made  by  eleven  states. 

§  455.  Rhode  Island  was  not  represented  in  the  Con- 
vention, and  did  not  ratify  the  Constitution  till  the  29th 
of  May,  1790,2  more  than  a  year  after  it  had  gone  into 
practical  operation.  The  ratification  was  accompanied 
by  a  Declaration  of  Rights,  and  the  recommendation  of 
many  amendments.  They  recommended  nearly  all  the 
alterations  proposed  by  other  states,  and  the  following 
additional  ones ; — 

That  the  judicial  power  of  the  United  States,  in  which 
a  state  is  a  party,  shall  not  extend  to  criminal  prosecu- 
tions, nor  to  authorize  any  suit,  by  any  person,  against 
a  state. 

»  4  KM  «t»i  Debates,  221.  a  Idem.  225. 


THE    RATIFICATION    OP  167 

That  no  amendment  shall  take  effect  without  the  con- 
sent of  eleven  states. 

That  no  person  shall  be  compelled  to  do  military  duty 
without  voluntary  enlistment. 

That  no  standing  army  be  kept  in  time  of  peace. 

These  alterations  were  not  adopted,  except  the  one 
in  relation  to  suits  by  individuals  against  a  state,  which 
is  imbodied  in  the  eleventh  amendment  to  the  Constitu- 
tion. 

§  456.  The  Constitution,  after  its  formation,  was 
addressed  to  the  President  of  Congress,  and  accompa- 
nied by  a  letter  from  General  Washington,  President  of 
the  Convention, — from  which  the  following  extracts  are 
taken. 

The  letter  shows,  in  a  remarkable  manner,  in  what 
light  the  Constitution  was  then  viewed,  and  what  were 
the  objects  of  its  formation.  They  were  very  different 
from  the  fanciful  constructions  which  metaphysical  poli- 
ticians have  since  been  disposed  to  put  upon  it. 

§  457-  lIt  is  obviously  impracticable  in  the  federal 
government  of  these  states,  to  secure  all  rights  of  inde- 
pendent sovereignty  to  each,  and  yet  provide  for  the  in- 
terests and  safety  of  all.  Individuals  entering  into 
society  must  give  up  a  share  of  liberty  to  preserve  the 
rest.  The  magnitude  of  the  sacrifice  must  depend,  as 
well  on  situation  and  circumstance  as  on  the  object 
to  be  obtained.  It  is  at  all  times  difficult  to  draw  with 
precision  the  line  between  those  rights  which  must  be 
surrendered  and  those  which  may  be  reserved;  and,  on 
the  present  occasion,  this  difficulty  was  increased  by  a 
difference  among  the  several  states  as  to  their  situation, 
extent,  habits,  and  particular  interests. 

In  all  our  deliberations  on  this  subject,  we  kept  steadily 

in  our  view  that  which  appears  to  us  the  greatest  interest 

of  every  true  American,  the  consolidation  of  the  Union, 

in  which  is  involved  our  prosperity,  felicity,  safety, — 

»  Elliott's  Debates,  249. 


1GS  THE    CONSTITUTION. 

perhaps  our  national  existence.  This  important  considera- 
tion, seriously  and  deeply  impressed  upon  our  minds,  led 
each  state  in  the  Convention  to  be  less  rigid  on  points 
of  inferior  magnitude  than  might  have  been  otherwise  ex- 
pected; and  thus,  the  Constitution,  which  we  noiv  present, 
is  the  result  of  a  spirit  of  amity,  and  of  that  mutual  de- 
ference and  concession,  which  the  peculiarity  of  our  polit- 
ical situation  rendered  indispensable. 

§  458.  The  spirit  in  which  our  Constituton  was  form- 
ed, and  the  great  object  to  be  obtained  by  it,  were  very- 
different  from  the  spirit  and  objects  entertained  by  some 
modern  politicians.  Then  the  consolidation  of  our  union 
was  the  great  end,  to  which  all  other  objects  were  pro- 
nounced, by  Washington  and  his  fellow-statesmen,  of  in 
ferior  magnitude.  Now,  consolidation,  whether  of  the 
union,  of  law,  or  of  government,  is  the  great  object  of 
fear  and  danger  to  a  class  of  men,  who  either  think  or 
assert  themselves  to  be  the  purest  of  patriots ! 

§  459.  At  the  first  session  of  the  first  Congress,  the 
Senate  and  House  of  Representatives,  two-thirds  con- 
curring, recommended  to  the  states  the  adoption  of 
twelve  amendments  to  the  Constitution,  comprising 
chiefly  those  parts  of  the  recommendations  of  the  states 
which  we  have  already  noticed  as  having  been  adopted. 
Ten  of  these  amendments  were  adopted1  by  three- 
fourths  of  the  legislatures  of  the  states,  and  became  a 
part  of  the  Constitution.  Subsequently,  three  other 
amendments  were  added. 

§  460.  On  the  10th  of  January,  1791,  Vermont,  the 
first  of  the  new  states,  joined  the  union,  and  gave  its 
assent  to  the  Constitution.  Since  then  the  Constitution 
has  been  adopted,  assented  to,  and  ratified  by  ten  new 
states,  who  have  become  integral  parts  of  the  great 
whole,  and,  as  we  shall  hereafter  see,  indissolubly  con- 
nected by  the  union.  In  this  manner  the  Constitution 
was  ratified,  and  received  its  binding  force  from  the 
i  4  Elliott's  Debates,  227. 


THE    RATIFICATION,    &,C.  269 

people  in  the  several  states,  not  from  the  state  govern 
ments. 

§  461.  The  language  of  the  ratifications  is  remarka- 
bly uniform,  and  remarkably  explicit,  as  to  the  source 
whence  the  Constitution  receives  its  authority  and  force. 

All  the  ratifications  commence  with,  We,  the  delegates 
of  the  people  thereof;  and  all  terminate  by  making  the 
ratifications  in  the  name  of  their  constituents,  the 
people. 

It  is  plain  throughout,  that  some  other  binding  force 
was  thought  necessary  than  mere  state  authorities 
The  people, — common  constituents,  it  is  true,  of  both 
state  and  national  governments, — were  everywhere 
summoned,  in  their  original  and  sovereign  capacity,  to 
give  authority  to  that  union  and  Constitution,  which  was 
not  a  compact  among  state  governments,  but  among  the 
people,  who  are  equally  sovereign  over  both  national 
and  state  governments,  and  upon  whom  the  Constitution 
acts  directly  and  personally.  • 

§  462.  Among  the  constructions  given  to  the  Consti- 
tution at  the  time,  in  the  declarations  of  the  states  rati- 
fying it,  may  be  remarked  the  following  fact, — that 
Massachusetts  explicitly  declared,  that  the  rights  not  ex 
pressly  granted  were  reserved  to  the  states, — and  Vir- 
ginia,  on  the  other  hand,  as  explicitly  held,  that  all 
powers  of  the  Constitution  were  derived  from  the  people 
of  the  United  States,  and  those  not  granted  were  re- 
served to  them.  These  states  have  now  exactly  re- 
versed their  positions,  and  exhibit  a  new  evidence  of 
the  instability  of  human  opinion.  Indeed,  to  those  who 
love  truth  more  than  argument,  all  the  metaphysical 
subtilties  of  the  profoundest  philosopher  would  weigh 
little,  in  construing  the  Constitution,  against  such  facts 
as  the  Letter  of  Washington,  the  ratifications  of  the 
states,  the  debates  of  the  Convention,  and  the  declared 
object  of  all  the  statesmen  who  participated  in  the  acts 
and  doings  of  that  day. 
J5 


170  THE    CONSTITUTION. 

§  463.  When  Congress  met  in  December,  1848,  thirty- 
states  had  been  admitted  into  the  American  Union.  The 
following- are  their  names  and  the  dates  of  admission,  in- 
cluding the  dates  at  which  the  original  states  ratified  the 
Constitution  : 

1.  Delaware,  ratified  the  Constitution  7th  of  Decem- 
ber, 1787,  without  condition  or  amendment. 

2.  Pennsylvania,  on  the  12th  December,  1787,  without 
declaration  or  recommendation. 

3.  New  Jersey,  on  the  18th  December,  1787,  with  the 
unanimous  consent  of  all  the  members  of  its  convention. 

4.  Connecticut,  on  the  9th  of  January,  1788,  without 
any  declaration. 

5.  Georgia,  on  the  2d  of  January,  1788,  without  con- 
dition. 

6.  Massachusetts,  on  the  7th  of  February,  1788,  with 
a  declaration  that  certain  amendments  were  necessary. 

7.  Maryland,  on  the  28th  of  April,  1788,  without  any 
declaration. 

8.  South  Carolina,  on  the  23d  of  May,  1788,  with  a 
recommendation  of  amendments. 

9.  New  Hampshire,  June  21st,  1788,  with  a  recom- 
mendation of  amendments. 

10.  Virginia,  on  the  26th  of  June,  1788,  with  a  De- 
claration of  Rights. 

11.  New  York,  on  the  26th  of  July,  1788,  with  a  re- 
commendation of  amendments. 

12.  North  Carolina,  on  the  21st  of  November,  1789, 
after  having  recommended  a  Bill  of  Rights. 

13.  Rhode  Island,  on  the  29th  of  May,  1790. 

14.  Vermont  was  received  into  the  Union — being  the 
first  of  the  new  stales — on  the  10th  of  January,  1791,  and 
a  little  more  than  three  years  from  the  time  that  Delaware 
(the first  of  the  states  of  the  Union)  ratified  the  Constitution. 

15.  Tennessee  was  received,  by  act  of  Congress,  June 
1st,  1796. 

16.  Kentucky  was  received  into  the  Union  June,  1792. 

17.  Ohio  was  received  into  the  Union  February  19th, 
1803. 


THE   RATIFICATION    OP  17 1 

18.  Louisiana  was  received  into  the  Union  April  8th, 
1812. 

19.  Indiana  was  received  into  the  Union  December 
11th,  1816. 

20.  Mississippi  was  received  into  the  Union  December 
16th,  1817. 

21.  Illinois  was  received  into  the  Union  December 
3d,  1818. 

22.  Alabama  was  received  into  the  Union  December 
14th,  1819. 

23.  Maine  was  received  into  the  Union  March  15th, 
1820. 

24.  Missouri  was  admitted  into  the  Union  August  10th, 
1821. 

25.  Arkansas  was  admitted  into  the  Union  June  14th, 
1836. 

26.  Michigan  was  admitted  into  the  Union  January 
26th,  1837. 

27.  Texas  was  annexed  March  1st,  1845. 

28.  FlotvIDa  was  received  into  the  Union  March  3d, 
1845. 

29.  Iowa  was  received  into  the  Union  March  3d,  1845. 

30.  Wisconsin  was  received  into  the  Union  March, 
1847. 

§  464.  If  the  manner  in  which  these  states  have  been 
received  into  the  Union,  be  historically  examined,  it  will 
be  found  that  there  are  four  different  modes  in  which  the 
States  of  the  Union  have  been  constituted:  First,  There 
were  the  thirteen  original  states,  which  acquired  their  in- 
dependence by  the  Revolutionary  War  and  the  Peace  of 
1783  :  Secondly,  There  are  the  states  formed  out  of  terri- 
tory which  belonged  to  the  original  states:  Thirdly,  The 
states  formed  out  of  territory  acquired  by  purchase :  and 
Fourthly,  A  state  annexed  by  virtue  of  a  joint  resolution 
of  Congress.  Should  California  and  New  Mexico  be 
formed  into  states,  there  will  "be  a  fifth  class  of  states — 
those  formed  from  territory  acquired  by  conquest. 

§  465.  Of  the  thirty  states  how  constituting  the  Union, 
thirteen  were  of  the  first  class,  original  states  ;  twelve,  viz. : 


172  THE    CONSTITUTION. 

Vermont,  Maine,  Kentucky,  Tennessee,  Alabama,  Mis- 
sissippi, Ohio,  Indiana,  Illinois,  Michigan,  Wisconsin  and 
Iowa,  were  formed  from  the  territory  belonging-  to  the 
original  states;  four,  viz.:  Louisiana,  Arkansas, Missouri 
and  Florida,  were  formed  from  purchased  territory — the 
three  first  purchased  of  France,  and  the  last  of  Spain  ;  one 
state  (Texas)  was  annexed. 

§  466.  At  the  election  of  General  Washington,  in  No- 
vember, 1788,  eleven  states  only  voted  (vide  Par.  454); 
but  at  the  election  of  1848,  sixty  years  afterward,  thirty 
states  voted.  In  the  election  of  1848,  the  relative  propor- 
tion of  electoral  votes  cast  by  the  old  and  new  states,  were 
as  follows : 
The   old  states,  including  Maine  (in    1788  voting 

with  Massachusetts),  cast  electoral  votes     -     -     164 
The  new  states  cast  electoral  votes 126 

This  fact  may  be  cited  to  prove  both  the  growth  of  the 
Union  and  the  elasticity  of  its  government,  which  thus 
develops  a  capacity  to  extend  its  numbers  and  territories 
to  indefinite  limits.  The  Union  and  the  Republican,  Rep- 
resentative and  Federative  Government  which  it  has 
established,  is  capable,  so  far  as  human  judgment  can  now 
discern,  of  folding  within  its  benign  embrace,  an  indefi- 
nite number  of  states  and  unnumbered  millions  of  the 
human  race 


STATE    GOVERNMENTS.  173 

i 

CHAPTER  IV. 

THEORY    OF    THE    STATE    GOVERNMENTS. 

§  467.  By  article  4th,  Section  4th,  of  the  United  States 
Constitution,  the  United  States  guarantees  to  every  state 
in  the  Union,  a  republican  form  of  government.  Most  of 
the  colonies  had  charters  previous  to  the  Revolution,  es- 
pecially the  New  England  states,  which  conceded  to  them 
all  the  rights  of  self-government ;  but  after  the  Declara- 
tion of  Independence,  and  at  the  close  of  the  war,  nearly 
all  of  them  formed  Constitutions  for  themselves.  Con- 
necticut continued  to  have  her  civil  government  adminis- 
tered by  the  charter  of  Charles  the  2d,  till  the  year  1818  ; 
and  Rhode  Island,  likewise,  lived  under  the  charter  of 
Charles  till  1842. 

§  468.  The  order  of  time  in  which  the  state  Constitu- 
tions were  formed,  is  as  follows,  viz.: 

1.  The  first  Constitution  formed  among  the  states,  was 
that  of  New  Jersey,  which  was  ratified  by  the  Provincial 
Congress  July  2d,  1776.  This  was  two  days  before  the 
Declaration  of  Independence,  and  it  was  provided,  that  if 
a  reconciliation  took  place,  that  instrument  should  be  null 
and  void. 

2.  The  next  Constitution  formed  was  that  of  Virginia, 
which  was  adopted  July  5th,  1776.  In  1830  a  con- 
vention was  called,  and  the  Constitution  changed  and 
amended. 

3.  Maryland  formed  her  Constitution  August  1 4th, 
1776,  which  was  amended  successively  in  1795,  1799, 
and  November,  1812. 

4.  North  Carolina  formed  her  Constitution  Decem- 
ber 18th,  1776,  which  was  amended  in  1835. 

5.  Massachusetts  formed  her  Constitution  March  2d, 

1780,  which   was  altered  and  amended  November  3d, 

1820.       ;• 
Id* 


174  STATE    GOVERNMENTS. 

6.  Delaware  formed  her  first  Constitution  September 
20th,  1776,  and  a  new  Constitution  June  12th,  1792. 

7.  New  York  formed  her  first  Constitution  April  20th, 
1777,  which  was  amended  October  27th,  1801,  and  fur- 
ther amended  November  10th,  1821.  A  new  Constitu- 
tion was  formed  and  adopted  in  1846,  which  is  at  present 
in  force. 

8.  Pennsylvania  formed  a  Constitution  September  28th, 
1776,  another  in  September,  1790,  and  another  in  1836. 

9.  South  Carolina  formed  a  Constitution  March  26th, 
1776,  which  was  amended  in  March,  1778,  and  in  June, 
1790. 

10.  New  Hampshire  formed  a  Constitution  January 
5th,  1776,  which  was  altered  in  1784,  and  was  further  al- 
tered and  amended  in  February,  1792. 

11.  Georgia  formed  a  Constitution  February  5th,  1777, 
a  second  in  1785,  and  a  third  in  May,  1798. 

$  469.  The  above  states  were  all  that  had  regular  Con- 
stitutions prior  to  the  admission  of  new  states.  Connecti- 
cut and  Rhode  Island  still  remained  under  the  charters  of 
Charles  the  2d. 

§  470.  The  provision  of  the  Constitution,  under  which 
new  states  are  admitted,  is  that  of  the  3d  section  of  the  4th 
article ;  and  also  that  of  the  4th  section  of  the  same  arti- 
cle. These  clauses,  taken  together,  impose  three  laws,  or 
elements,  which  must  enter  into  the  admission  of  new 
states.  1st.  The  term  of  authority  used  is  may — not  shall. 
Hence  it  is  in  the  power  of  Congress  to  deny  such  admis- 
sion, although  the  state  applying  for  admission  may  be 
formed  out  of  the  territory  and  population  of  the  United 
States.  2d.  The  United  States,  as  a  nation ,  guarantees 
to  each  of  these  new  states,  a  republican  form  of  govern- 
ment. This  is  a  right,  which  belongs,  not  only  to  the 
state,  but  to  the  Union.  The  state  has  a  right  to  demand, 
and  the  Union  must  enforce,  a  republican  government. 
3d.  The  Union  shall  protect  each  of  the  states  against  in- 
vasion and  against  domestic  violence.  These  are  the  con- 
ditions attendant  upon  the  admission  of  new  states. 

§  471.  Progress  of  the  States. — The  provision  of  the 


STATE    GOVERNMENTS.  J75 

United  States  Constitution  by  which  new  stales  may  be 
admitted,  has  proved  elastic  enough  to  add  more  than  the 
original  number,  and  indefinite  in  its  power  to  extend  the 
magnitude,  numbers  and  glory  of  the  Union.  The  pro- 
gress of  the  state  Constitutions,  since  1790,  has  been  as 
follows : 

12.  Vermont  was  formed  from  a  part  of  the  state  of 
New  York,  by  the  consent  of  its  Legislature,  by  the  act 
of  March  6,  1790.  Application  was  made  by  its  Com- 
missioners for  admission,  February  9th,  1791,  and  it  was 
admitted  March  4th,  1791.  A  Constitution  had  been  pro- 
fessedly formed  in  December,  1777 ;  but  its  present  Con- 
stitution was  adopted  July  9th,  1793. 

13.  Kentucky  was  formed  from  the  territory  of  Vir- 
ginia, with  the  consent  of  its  Legislature,  by  the  act  of 
December  18th,  1789.1  The  application  of  the  conven- 
tion of  Kentucky  was  made  December  9th,  1790,  and  it 
was  admitted  June  1,  1792.  The  Constitution  of  Ken- 
tucky was  formed  August  17th,  1799. 

14.  Tennessee  was  formed  from  territory  ceded  to  the 
United  States  by  the  state  of  North  Carolina.  She  form- 
eda  convention  and  adopted  a  Constitution  February  6, 
1796.  An  act  for  its  admission  was  passed  and  approved 
June  1,  1796. 

15.  Ohio  was  formed  from  the  territory  north-west  of 
the  river  Ohio.  This  territory  was  ceded  to  the  United 
States  by  the  General  Assembly  of  Virginia,  in  1783,  and 
accepted  by  the  Congress  of  the  United  States  March  1, 
1784.  On  the  13th  of  July,  1787,  Congress  passed  ^vhat 
is  called  the  Ordinance  of  1787,  for  the  government  of 
this  territory.  (See  the  Ordinance  in  full,  page  229  of 
this  work.)  On  April  30th,  1802,  Congress  passed  an 
act  to  allow  the  eastern  division  of  said  territory  to  form  a 
Constitution  and  state  government.  On  the  1st  of  No- 
vember, 1802,  a  Constitution  was  formed,  and  presented 
to  Congress  January  7th,  1803.  On  February  19th,  1803, 
an  act  was  passed  and  approved  for  the  due  execution  of 
the  laws  within  that  staie. 

IBioren's  and  Duane's  edition  of  the  Laws,  Vol.  1,  page  673. 


176  STATE    GOVERNMENTS. 

16.  Louisiana  was  formed  out  of  the  territory  ceded  to 
the  United  States  by  France,  by  treaty  of  April  30th,  1803. 
The  act  to  enable  the  President  to  take  possession  of  this 
territory,  was  passed  October  31st,  1803.  Louisiana  was 
divided  into  two  territories  by  the  act  of  Congress,  March 
26th,  1804.  One  was  called  the  Territory  of  Orleans,  the 
other  the  District  of  Louisiana.  March  2d,  1805,  an  act 
was  passed,  authorizing  the  people  of  Orleans  Territory  to 
form  a  Constitution  and  state  government,  when  their 
number  should  amount  to  sixty  thousand.  On  the  20th 
of  February,  1811,  an  act  was  passed,  allowing  them  to 
form  a  state  Constitution  and  to  have  one  Representative 
till  the  next  census.  January  22d,  1812,  the  people  form- 
ed a  Constitution  -and  state  government,  and  gave  the  state 
the  name  of  Louisiana.  By  the  act  of  April  8,  1812, 
these  proceedings  were  approved,  and  the  laws  of  the 
United  States  extended  over  the  new  state. 

17.  Indiana  was  formed  out  of  the  North-western  Ter- 
ritory, ceded  to  the  United  States  by  Virginia.  (See  Ohio.) 
The'territory  was  established  by  act  of  May  7th,  1800. 
The  territory  was'  divided  into  two  separate  governments, 
and  that  of  Michigan  created  by  act  of  January  11,  1805. 

The  territory  was  again  divided  into  two  separate  gov- 
ernments, and  that  of  Illinois  created  by  act  of  February 
3d,  1809. 

The  Legislature  of  Indiana  applied  to  be  enabled  "to 
form  a  state  Constitution.  (See  Journal  of  the  House  of 
Representatives,  1815-16.) 

An  act  to  enable  the  people  of  Indiana  to  form  a  state 
government,  was  passed  April  19th,  1816. 

The  people  of  Indiana  formed  a  Constitution  accord- 
ingly, June  29th,  1816. 

Indiana  was  received  into  the  Union,  by  joint  resolution, 
December  11,  1816. 

18.  Mississippi  was  formed  out  of  territory  ceded  by  the 
state  of  South  Carolina,  August  9th,  1787,  and  by  the 
state  of  Georgia,  April  24th,  1802. 

The  government  of  the  territory  was  established  by  act 
of  Congress,  April  7th,  1798. 


STATE    GOVERNMENTS.  177 

A  joint  resolution  of  Congress,  "requesting  the  assent  of 
the  state  of  Georgia  to  the  formation  of  two  states  of  the 
Mississippi  territory,"  was  passed  and  approved  June  17th, 
1812. 

An  act  to  enable  the  people  of  the  western  part  of  Mis- 
sissippi territory  to  form  a  Constitution  and  state  govern- 
ment, was  passed  March  1st,  1817. 

The  people  of  this  territory  formed  a  state  Constitution 
August  17th,  1817. 

Mississippi  was  admitted  into  the  Union  as  a  state,  by 
act  of  Congress,  approved  December  10th,  1817. 

19.  Illinois  was  formed  from  a  part  of  the  North-west- 
ern Territory,  ceded  to  the  United  States  by  Virginia. 
(See  Ohio.) 

An  act  (see  Indiana)  was  passed  February  3d,  1809, 
dividing  Indiana  into  two  separate  governments,  and  or- 
ganizing Illinois. 

A  memorial  to  the  House  of  Representatives  from  the 
{Legislative  Council,  to  be  allowed*to  form  a  state  govern- 
ment, was  presented  January  16th,  1818. 

An  act  to  enable  the  people  of  Illinois  territory  to  form 
a  constitution,  was  approved  April  18th,  1818. 

The  people  of  Illinois  formed  a  state  Constitution  August 
26th,  1818. 

The  state  of  Illinois  was  admitted  into  the  Union  by 
act  of  Congress,  December  3d,  1818. 

20.  Connecticut,  though  one  of  the  old  thirteen  states, 
lived  under  the  charter  of  Charles  the  2d,  April  23d,  1662, 
till  the  year  1818,  September  15th,  when  a  Constitution 
was  formed  and  adopted. 

21.  Alabama  was  formed  out  of  a  part  of  the  territory 
ceded  by  South  Carolina  and  Georgia.    (See  Mississippi.) 

The  eastern  part  of  Mississippi  territory  was  made  into 
a  separate  territory,  called  "Alabama,"  by  act  of  Congress 
March  3d,  1817." 

A  petition  from  the  Legislative  Council  of  Alabama, 
praying  that  the  people  might  be  allowed  to  form  a. state 
Constitution,  was  presented  to  the  House  of  Representa- 
tives December  1 7th.  1818. 


178 


STATE    GOVERNMENTS. 


An  act  to  enable  the  people  of  Alabama  to  form  a  Con- 
stitution and  state  government,  was  passed  March  2d,  1819. 

The  people  formed  a  Constitution  August  2d,  1819. 

Alabama  was  admitted  into  the  Union  by  act  passed 
December  14th,  1819. 

22.  Maine  was  formed  out  of  a  part  of  the  territory  of 
Massachusetts. 

An  act  of  the  Legislature  of  Massachusetts  was  passed 
on  the  1 9th  of  June,  1 8 19,  permitting  that  part  of  the  state 
known  as  Maine,  to  form  a  separate  state. 

A  petition  from  a  convention  of  the  people  of  Maine, 
praying  to  be  permitted  to  form  a  separate  state,  was  pre- 
sented to  the  House  of  Representatives  December  8th, 
1819. 

A  Constitution  was  adopted  in  convention  October  8th, 
1819. 

Maine  was  admitted  into  the  Union  on  the  15th  day  of 
March,  1820. 

23.  Missouri  was  formed  out  of  part  of  the  territory 
ceded  by  France,  by  the  treaty  of  April  30th,  1803.  (See 
Louisiana.) 

By  act  of  March  26th,  1804,  Louisiana  was  divided  in- 
to two  territories. 

By  act  of  March  3d,  1805,  a  separate  government  was 
formed,  under  the  title  of  the  Territory  of  Louisiana. 

By  the  act  of  June  4th,  1812,  it  was  provided  that  the 
territory  before  called  Louisiana,  should  be  called  "  Mis- 
souri." 

A  memorial  of  the  Legislative  Council  and  House  of 
Representatives  of  Missouri,  for  admission  into  the  Union 
as  a  state,  was  presented  to  the  Senate  December  29th, 
1819. 

An  aet  to  authorize  the  people  of  the  Missouri  Territo- 
ry to  form  a  Constitution  and  state  government,  was  pass- 
ed March  6th,  1820. 

By  act  of  March  2d,  1821,  Missouri  was  admitted  into 
the  Union  on  a  certain  "condition."  The  "condition" 
was  accepted  by  the  Legislature  of  Missouri,  in  a  public 
act,  June  26th,  1821. 


STATE    GOVERNMENTS.  179 

By  proclamation,  dated  August  10th,  1821,  the  Presi- 
dent declared  the  admission  of  Missouri  complete,  accord- 
ing- to  law. 

24.  Arkansas  was  formed  out  of  part  of  the  territory- 
ceded  by  France  to  the  United  States,  by  treaty  of  April 
30th,  1803.     (See  Louisiana.) 

An  act  establishing-  a  separate  territorial  government  in 
the  southern  part  of  the  territory  of  Missouri,  was  passed 
March  2d,  1819,  by  which  it  was  named  Arkansas. 

A  memorial  of  the  inhabitants,  by  convention,  praying 
that  Arkansas  may  be  admitted  into  the  Union,  accom- 
panied by  a  Constitution  formed  by  said  convention,  was 
presented  in  the  House  of  Representatives  March  1st, 
1836. 

The  Constitution  of  Arkansas  was  formed  on  the  30th 
of  January,  1836. 

An  act  for  the  admission  of  the  state  of  Arkansas  into 
the  Union,  was  passed  June  15th,  1836. 

25.  Michigan  was  formed  out  of  a  part  of  the  North- 
western Territory,  ceded  to  the  United  States  by  the  state 
of  Virginia.     (See  Ohio.) 

An  act  to  divide  Indiana  territory  into  two  separate 
governments,  and  establish  the  territory  of  Michigan,  was 
passed  January  I  lth,  1805. 

A  memorial  for  admission  was  presented  in  the  House 
of  Representatives  December  11th,  1833. 

An  act  to  establish  the  northern  boundary  of  the  state 
of  Ohio,  and  to  provide  for  the  admission  of  the  state  of 
Michigan  into  the  Union,  was  passed  June  15th.  1836. 

An  act  to  admit  the  state  of  Michigan  into  the  Union, 
upon  an  equal  footing  with  the  original  states,  was  passed 
January  26th,  1837. 

26.  Rhode  Island,  though  one  of  the  original  thirteen 
states,  remained  under  the  charter  of  Charles  2d,  grant- 
ed in  1662,  till  September,  1842,  when  this  state  formed 
a  Constitution  for  herself. 

27.  Florida  was  formed  out  of  territory  ceded  by  Spain 
to  the  United  States  by  the  treaty  of  February  22d,  1819. 

An  act  to  enable  the  President  to  take   possession  of 


180  STATE  GOVERNMENTS. 

East  and  West  Florida,  and  establish  a  temporary  gov- 
ernment therein,  was  passed  March  3d,  1819. 

An  act  to  establish  a  territorial  government  in  Florida 
was  passed  March  30th,  1822. 

A  memorial  of  Florida,  with  a  Constitution  formed, 
was  presented  to  the  House  of  Representatives  February 
20th,  1839. 

An  act  for  the  admission  of  the  states  of  Iowa  and 
Florida  into  the  Union,  was  passed  March  3d,  1845. 

28.  Iowa  was  formed  out  of  the  original  territory  of  the 
United  States. 

An  act  to  divide  the  territory  of  Wisconsin  and  to  es- 
tablish the  territorial  government  of  lovva,  was  passed 
June  12th,  1838. 

February  12th,  1844,  a  memorial  from  the  Legislative 
Assembly  of  Iowa  for  admission  into  the  Union,  was  pre- 
sented in  the  Senate. 

December  9th,  1844,  a  memorial  of  a  convention,  with 
a  copy  of  a  Constitution  adopted  by  the  people  of  Iowa, 
was  presented  in  the  Senate,  asking  admission  into  the 
Union. 

An  act  for  the  admission  of  the  states  of  Iowa  and 
Florida  into  the  Union,  was  passed  March  3d,  1845. 

29.  Texas  was  an  independent  republic,  formed  out  of 
Mexican  territory,  and  annexed  to  the  United  States  by  a 
joint  resolution  of  Congress,  approved  March  1st,  1845. 

In  July,  1845,  Texas  formed  and  adopted  a  Constitution. 

On  the  29th  of  December,  1845,  a  joint  resolution  was 
passed  by  Congress,  declaring  Texas  a  state  of  the  Union, 
on  equal  terms  with  the  original  states. 

30.  Wisconsin  was  formed  out  of  the  North-western 
Territory,  ceded  to  the  United  States  by  Virginia.  (See 
Ohio.) 

A  memorial  of  the  Legislative  Council  of  Michigan 
was  presented  in  the  House  of  Representatives  March  1st, 
1836,  for  the  division  of  that  territory,  and  that  the  terri- 
tory of  Michigan  be  established. 

An  act  establishing  the  territorial  government  of  Wis- 
consin, was  passed  and  approved  April  20th,  1836. 


STATE    GOVERNMENTS. 


181 


On  March  20th,  1845,  a  resolution  of  the  Legislative 
Council  of  Wisconsin  was  presented  in  the  Senate,  asking 
that  provision  be  made  for  holding  a  state  convention  for 
forming  a  state  Constitution. 

August  6th,  1846,  a  bill  to  enable  the  people  of  Wis- 
consin territory  to  form  a  Constitution  and  state  govern- 
ment, and  for  the  admission  of  such  state  into  the  Union, 
was  passed  and  approved. 

December  16th,  1846,  the  people  of  Wisconsin  formed 
and  adopted  a  state  Constitution. 

March  3d,  1847,  an  act  for  the  admission  of  the  state 
of  Wisconsin  into  the  Union,  was  passed  and  approved. 

Two  members  of  Congress  from  that  state,  took  their 
seats  in  th*e  30th  Congress. 

§  472.  Modes  of  admitting  States,  and  the  Forma- 
tion of  new  States. — In  article  464,  it  was  stated  that  there 
were  four  modes  in  which  states  were  constituted — from 
the  original  states,  from  territory  belonging  to  them,  from 
territory  purchased,  and  by  annexing  an  independent  state. 
Thus,  there  were  thirteen  original  states,  twelve  from  ter- 
ritory which  belonged  to  the  original  states,  viz. :  Ver- 
mont, Maine,  Kentucky,  Tennessee,  Alabama,  Mississip- 
pi, Ohio,  Indiana,  Illinois,  Michigan,  Iowa,  Wisconsin  ; 
four  from  territory  purchased,  viz.:  Louisiana,  Missouri, 
Arkansas  and  Florida  ;  and  one  by  annexation,  viz. :  Tex- 
as. But  there  are,  also,  different  legal  methods  of  admis- 
sion. Thus,  the  thirteen  original  states  came  into  the 
Union,  as  we  have  seen,  by  ratifying — that  is,  adopting — 
a  Constitution  formed  by  a  national  convention.  The 
moment  they  ratified  that  Constitution,  they  became  sub- 
ject to  its  duties,  rights  and  liabilities.  Three  of  the 
present  states  became  members  of  the  Union  from  farts 
of  other  states,  by  the  joint  act  of  Congress  and  those 
states,  viz. :  Vermont,  Kentucky  and  Maine.  This  was 
in  conformity  to  section  3d  of  article  4th  of  the  Constitu- 
tion. Twelve  of  the  present  states  were  admitted  as  states, 
after  previously  passing  through  the  condition  of  a  terri- 
tory, by  act  of  Congress.  One  state  (Tennessee)  was  ad- 
mitted from  territory  of  the  United  States,  by  act  of  Con- 


182 


STATE    GOVERNMENTS. 


gress,  without  having  had  a  territorial  government;  and 
one  state  (Texas)  was  admitted  by  joint  resolution  of  Con- 
gress, having  been  an  independent  state. 

An  analysis  of  these  modes  shows,  that  there  are  really 
three  legal  methods  of  receiving  a  state,  established  by  the 
practice  of  the  government  under  the  Constitution  : 

1st.  A  state  may  be  formed  from  part  of  a  state,  by  the 
joint  act  of  the  Congress  of  the  United  States  and  of  the 
state  from  which  it  was  formed. 

2d.  A  state  may  be  formed  from  a  territory  already 
organized,  by  a  simple  act  of  Congress. 

3d.  A  state  may  be  formed  by  the  annexation  of  an  in- 
dependent state,  with  the  consent  of  that  state  and  a  joint 
resolution  of  Congress. 

In  the  latter  case  the  theory  is,  that  receiving  an  inde- 
pendent state  into  the  Union  is  an  act  of  national  sover- 
eignty, and  that  it  is  only  necessary  that  the  constituted 
authorities  of  each  should  consent.  It  is  not  forbidden  by 
the  Constitution,  and  is,  therefore,  one  of  those  national 
powers  which   may  be  exerted  with  the  national  consent. 

There  is  one  other  legal  method  of  admitting  a  state, 
which  has  not  yet  been  practiced.  This  is,  by  the  formation 
of  a  state  from  parts  of  two  states.  For  example,  East  Ten- 
nessee and  Western  North  Carolina  might  be  formed  into 
a  state.  In  that  case,  it  may  be  received  by  the  joint  act  of 
Congress  and  of  each  of the  states  from  which  it  was  formed. 

§  473.  The  thirty  stales  which,  in  1849,  made  up  the 
American  Union,  have  all  regularly  formed  Constitutions. 
These  Constitutions  are  all  formed  upon  the  same  princi- 
ples with  each  other,  and  with  the  Constitution  of  the 
United  States.  They  all  observe  the  same  division  of  the 
government  into  the  three  parts  of  Executive,  Legislative 
and  Judicial.  They  all  adopt  the  representative  principle, 
and  are  all  republican.  One-half  of  them  are  accompanied 
with  declarations  of  right — a  measure  of  superabundant 
caution — for  the  evils  which  they  are  generally  intended 
to  operate  against,  could  not  take  place  if  the  state  Consti- 
tutions had  no  existence,  as  the  Constitution  of  the  United 
States  effectually  prohibits  them. 


STATE    GOVERNMENTS.  183 

§  474.  As  all  the  state  Constitutions  are  similar  to  each 
other,  and  nearly,  in  form,  the  same  with  the  Constitution 
of  the  United  States.,  it  will  be  unnecessary,  for  the  purpose 
of  instruction,  to  consider  more  than  one  of  them  ;  and  for 
this  purpose  we  may  take  the  Constitution  of  Ohio,  and 
point  out,  also,  some  differences  between  that  and  the  Con- 
stitutions of  other  states. 

CONSTITUTION    OF    OHIO. 

§  475.  The  Constitution  of  Ohio  contains  eight  articles. 
The  first  three  articles  divide  the  powers  of  the  state 
government  into  three  departments,  viz. :  legislative,  ex- 
ecutive and  judicial,  and  define  their  powers. 

Article  4th  declares  who  shall  be  electors  in  state 
elections,  and  what  shall  be  their  rights. 

Article  5th  declares  and  defines  in  what  manner  the 
officers  of  the  militia  shall  be  elected. 

Article  6th  defines  and  regulates  the  manner,  in 
which  certain  civil  officers  shall  be  elected. 

Article  7tii  treats  of  certain  civil  officers,  the  seat  of 
government,  the  boundary  of  the  state,  and  other  miscel- 
laneous subjects. 

Article  8th  is  a  Declaration  of  Rights. 

§  476.  Article  1st  declares  that  the  Legislative  Pow- 
er of  the  state  shall  be  vested  in  a  General  Assembly, 
which  shall  consist  of  two  branches — one  the  Senate  and 
the  other  the  House  of  Representatives.  The  Senators 
must  be  chosen  biennially,  and- retain  their  office  two 
years,  in  such  a  manner  that  one-half  shall  be  chosen 
each  year.  The  House  is  to  be  chosen  every  year,  and 
the  members  serve  one  year. 

In  the  General  Assembly  thus  constituted,  are  vested 
all  the  legislative  powers  which  are  not  inconsistent  with 
the  Constitution  of  the  state  or  of  the  United  States,  and 
which  concern  the  affairs  of  the  state,  and  the  rules  and 
regulations  of  their  own  bodies. 

§  477.  Article  2d  declares  that  the  supreme  executive 
power  of  the  state  is  vested  in  a  Governor.  He  is  to  be 
chosen  by  the  same  electors  as  those  for  the  General  As- 


184  STATE    GOVERNMENTS. 

sembly,  every  two  years,  holding  his  office  for  two  years. 
His  powers  are  to  command  the  army,  navy  and  militia 
of  the  state,  to  grant  pardons,  to  appoint  to  office  in  va- 
cancies which  arise  during  the  recess  of  the  Legislature, 
and  to  require  information  from  executive  officers.  His 
signature  is  not  required  to  the  laws  enacted  by  the  Gen- 
eral Assembly. 

§  478.  The  3d  article  vests  the  Judicial  power  of  the 
state  in  a  Supreme  Court,  in  Courts  of  Common  Pleas 
for  each  county,  in  Justices  of  the  Peace,  and  in  such  other 
courts  as  the  Legislature  may  establish.  The  Judges  of 
the  Supreme  Court  have  a  final  appellate  jurisdiction,  in 
all  cases,  civil  and  criminal.  Original  jurisdiction  belongs 
both  to  the  Common  Pleas  and  the  Supreme  Courts. 
Matters  of  probate,  testaments  and  guardians,  belong  to 
the  Court  of  Common  Pleas.  The  Judges  of  the  Supreme 
Court  and  of  the  Common  Pleas,  are  elected  by  the  Leg- 
islature. Justices  of  the  Peace  are  elected  by  the  electors 
in  each  township. 

§  479.  Article  4th  defines  all  electors  to  be  "white 
male  inhabitants,  above  the  age  of  twenty-one  years,  hav- 
ing resided  in  the  state  one  year  next  preceding  the  elec- 
tion, and  who  have  paid,  or  are  charged  with,  a  state  or 
county  tax,"  and  provides  that  all  such  persons  shall  enjoy 
the  right  of  an  elector.  The  last  clause  of  the  same  arti- 
cle declares  that  "all  persons  who  are  compelled  to  labor 
on  the  roads  of  their  respective  townships  or  counties," 
shall  be  considered  as  being  charged  with  a  tax,  and,  in 
that  respect,  qualified  electors.  All  white  inhabitants  above 
twenty-one,  are  chargeable  with  such  a  tax :  and,  there- 
fore, in  Ohio,  suffrage  may  be  considered  universal  to  white 
male  inhabitants  above  twenty-one  years  of  age. 

The  Supreme  Court  has  decided  that  a  person  is  white 
who  has  less  than  one-half 'negro  blood. 

§  480.  The  Declaration  of  Rights  recites  all  those 
things  which  are  considered  as  inherent  elements  of  per- 
sonal liberty— such  as  the  right  of  freedom,  of  speech  and 
the  press,  of  religious  worship,  of  the  trial  by  jury,  and  of 
a  speedy  administration  of  justice. 


STATE    GOVERNMENTS.  185 

§  481.  We  observe  that,  in  the  outlines  of  the  Consti- 
tution of  Ohio,  it  corresponds  very  well  with  that  of  the 
United  States. 

1st.  Like  that  of  the  United  States,  Power  is  divided 
into  three  departments — legislative,  executive  and  judicial. 

2d.  That  the  legislative  department  is  likewise  divided 
into  two  branches — the  Senate  and  the  House. 

3d.  That,  like  Congress,  they  decide  on  the  qualifica- 
tions of  their  own  members,  and  determine  the  rules  of 
their  own  proceedings. 

4th.  The  Executive,  like  the  President,  is  chief  of  such 
naval  and  military  force^as  the  state  may  employ. 

5th.  The  judiciary  is  constituted  on  the  same  plan  of 
Supreme  and  minor  courts. 

In  fine,  the  general  principles  of  the  state  Constitutions 
and  those  of  the  United  States  are  the  same.  The  great 
differences  consist  in  the  subject-matter  upon  which  they 
respectively  act,  and  the  kind  of  power  which  is  granted. 

§  482.  The  principal  differences  between  the  national 
and  state  Constitutions  may  be  thus  defined  :  The  Consti- 
tution of  the  United  States,  being  national,  regards  nation- 
al objects,  and  is  vested  with  powers  chiefly  external,  while 
the  state  Constitutions,  being  subordinate  and  local,  act 
almost  wholly  upon  municipal  and  internal  affairs. 

§  483.  What,  then,  is  the  object  and  extent  of  state 
legislation?  The  Constitution  of  the  United  States  ex- 
pressly defines  all  power  into  three  distinct  classes.1  1st, 
Those  powers  and  rights  delegated  to  the  government  of 
the  United  States  in  the  national  Constitution  ;  2d,  Those 
delegated  to  the  states  in  the  state  Constitutions ;  3d,  Those 
reserved  to  the  people.  For  the  first  class,  we  must  refer 
to  the  Constitution  of  the  United  States  ;  for  the  second, 
to  the  Constitutions  of  the  states ;  and  the  last  are  all  those 
not  included  in  the  two  former.  The  last  class  of  rights 
are  those  generally  called  inalienable — such  as  the  rights 
of  personal  liberty  and  of  private  worship,  and  the  great 
right  of  amending  or  abrogating  government — for,  as  ev- 
ery people  have  the  right  to  make  their  government,  they 

ISee  10th  amendment  to  the  United  States  Constitution. 
16* 


1S5  STATE    GOVERNMENTS. 

cannot  be  deprived. of  the  right  of  abrogating  it;  though 
the  last  cannot  be  exercised  by  individuals,  in  opposition 
to  existing  laws.  It  must  be  the  sovereignty  of  the  peo- 
ple creating  revolution. 

The  powers  of  the  state  governments,  then,  are  all  that 
great  body  of  authority  which  the  Constitution  of  the 
United  States  does  not,  directly  or  indirectly,  prohibit  to 
the  states,  and  the  people  have  not  themselves  retained. 

§  484.  Without  entering  into  details,  we  may  briefly 
notice  some  of  the  most  important  powers  possessed  by  the 
states. 

1st.  The  Constitution  of  the  United  States,  while  di- 
recting that  a  representative  body  should  be  chosen,  left 
the  regulation  of  the  elective  franchise  to  the  states  ;  for  it 
Jdirects  that  the  "electors"  shall  have  the  same  qualifica- 
tions as  electors  for  the  most  numerous  branch  of  the  Legis- 
latures. Each  state,  then,  in  regulating  the  elective 
franchise  for  itself,  also  regulates  that  of  the  government 
of  the  Union,  and  may  make  it  as  enlarged  or  as  restrict- 
ed as  it  pleases. 

2d.  Another  power  possessed  by  the  states,2  is  that  of 
partaking  in  the  formation  of  the  national  Senate.  Though 
this  would  seem  to  place  the  existence  of  the  Senate  in 
the  power  of  the  states,  yet  such  is  not  the  fact ;  for  the 
Constitution,  in  another  provision,  gives  Congress  the 
power  to  make  and  alter  regulations  as  to  times  and  man- 
ner of  choosing  senators :  if,  then,  Congress  make  such 
regulations,  and  the  states  do  not  choose  their  senators  at 
that  time  and  in  that  mode,  they  will  act  unconstitutional- 
ly, and  place  themselves  in  the  wrong. 

3d.  Another  power  possessed  by  the  states,4  is  contain- 
ed in  the  mode  of  choosing  the  President.  The  states 
appoint,  in  such  manner  as  the  Legislatures  direct,  the 
electors  ;  but,  in  this  case,  as  in  that  of  senators,  the  pow- 
er to  act  or  not  act,  is  not  left  with  the  states.  By  anoth- 
er clause,5  Congress  appoints  the  time  of  choosing  electors, 
and  the  day  of  giving  their  votes. 

1  Art.  1,  Sec.  2,  IT.  S   Constitution.  ~  Idem,  Section  3. 

3  Idem,  Sec.  4.      4  Art.  2,  Sec.  2,  17.  S.  Constitution.    5Sec.  4. 


STATE    GOVERNMENTS  187 

§  485.  But  the  greatest  and  most  important  authority 
of  the  state  governments,  is  that  of  enacting  the  whole  body 
of  local  and  municipal  laws,  and  enforcing  them  by  the 
organization  and  process  of  judicial  courts.  This  class 
of  laws  is  that  which  most  intimately  concerns  the  happi- 
ness and  prosperity  of  the  people.  An  act  of  incorpora- 
tion by  the  Legislature,  or  the  location  of  a  canal,  may 
double  the  value  of  property,  or  a  series  of  unwise  enact- 
ments destroy  the  peace  or  paralyze  the  industry  of  socie- 
ty, when  the  distant  war,  upon  which  the  nation  is  en- 
gaged, is  scarcely  felt. 

§  486.  The  state  governments  are  chiefly  concerned 
with  four  classes  of  laws.  1st,  Those  which  relate  to  pri- 
vate property  and  private  rights — such  as  the  laws  of  in- 
heritance, of  wills,  of  debtor  and  creditor,  &c.  2d,  Such 
as  relate  to  corporate  and  public  bodies — such  as  turnpike 
and  bridge  companies,  chartering  cities,  charitable  and 
literary  institutions.  3d,  Those  which  relate  to  public 
property,  public  works,  and  public  institutions — such  as 
public  buildings,  state  canals,  public  schools,  and  state  in- 
stitutions of  benevolence.  4th,  Those  which  relate  to  the 
punishment  of  crime — such  as  what  constitutes  crime,  the 
extent  of  punishment  and  the  mode  of  conviction.  But 
crimes  committed  on  the  high  seas,  or  those  against  the 
laws  of  the  United  States,  are  not  within  the  jurisdiction 
of  the  states. 

In  addition  to  these  great  powers  of  state  legislation, 
there  are  some  of  a  miscellaneous  character — such  as  the 
organization  of  the  militia,  and  the  co-operation  of  the 
states  in  amendments  to  the  national  Constitution.1 

DIFFERENCES    IN    THE    STATE    CONSTITUTIONS. 

§  487.  Within  the  last  few  years,  several  of  the  states 
have  made  new  Constitutions,  and  many  new  states  have 
been  admitted  to  the  Union.  The  result,  in  general,  has 
been  to  reduce  the  state  Constitutions  to  very  nearly  the 
same  general  principles.  Some  differences,  however,  may 
be  noted. 

1  Article  5th  United  States  Constitution. 


138  STATE  GOVERNMENTS. 

1st.  One  of  the  principal  differences  in  the  state  govern- 
ments, is  in  the  power  of  the  Executive.  In  some  in- 
stances, he  has  the  same  veto  power  as  the  President  of  the 
United  States.  His  signature  is  required  to  a  law,  and  if 
he  refuse,it  requires  two-thirds  of  the  Legislature  to  pass  it. 
Such  is  the  case  in  Georgia,  Mississippi  and  New  Hamp- 
shire. 

In  other  states,  such  as  Ohio,  his  signature  is  not  re- 
quired to  laws  at  all,  and  it  is  never  affixed. 

In  another  class  of  states,  such  as  Kentucky  and  Indi- 
ana, the  Governor's  signature  is  required,  and  he  may 
make  objections  ;  but  if  he  does  object,  the  two  houses  of 
the  Legislature  may  reconsider  the  law,  and  pass  it,  not- 
withstanding his  objections,  by  a  majority  of  all  the  mem- 
bers elected  to  each  house. 

In  Vermont,  the  passage  of  a  law  may  be  suspended  till 
the  next  Legislature,  by  the  Governor  and  Council. 

2d.  AnotherdifTerencein  the  state  Constitutions  consists  in 
the  definition  of  the  right  of  suffrage.  Of  late  years,  how- 
ever, and  in  the  new  Constitutions,  this  difference  has  al- 
most dwindled  away — almost  all  the  Constitutions  having 
provided  for  universal  suffrage  in  the  case  of  white  males 
over  twenty-one  years  of  age. 

The  variations  of  the  right  of  suffrage  consist  chiefly 
in  the  time  of  residence.  Thus,  in  New  Hampshire,  the 
right  of  suffrage  is  vested  "  in  every  male  inhabitant  of 
twenty-one  years  of  age,  except  paupers  and  persons  ex- 
cused from  paying  taxes  by  their  own  request."  This 
seems  to  leave  the  right  to  depend  on  the  definition  of 
inhabitancy,  without  reference  to  time. 

In  Maine,  three  months  residence  is  required. 

In  Illinois,  the  requisition  is  six  months  residence  in  the 
state. 

In  Tennessee,  it  is  six  months  in  the  county. 

In  Connecticut,  it  is  six  months  residence  and  militia 
duty,  or  state  tax,  and  moral  character. 

In  Indiana,  Vermont,  North  Carolina,  Georgia,  Ala- 
bama, Missouri,  New  Jersey,  Maryland,  Massachusetts,  New 
York,  Mississippi,  Ohio  and  Louisiana,  one  year's  residence 


STATE    GOVERNMENTS.  [QQ 

is  required.  In  Georgia,  Alabama  and  Missouri,  the  voter 
must  have  resided  three  months  within  the  county. 

In  Maryland,  Massachusetts  and  Mississippi,  there  must 
be  six  months  residence  within  a  county. 

Pennsylvania,  Delaware,  and  South  Carolina,  require 
two  years  residence  and  state  tax. 

Kentucky  requires  a  residence  of  two  years  in  the  state, 
and  of  one  within  the  county. 

In  North  Carolina  and  Virginia  there  is  a  slight  prop- 
erty qualification.  But,  generally,  the  qualifications  re- 
quired of  a  voter  are  so  slight,  that  suffrage  is  said  to  be 
universal. 

3d.  Another  difference  between  the  various  state  gov- 
ernments, consists  in  the  organization  of  the  Judiciary. 
Thus,  some  states  have  separate  Chancery  courts,  and  in 
some,  the  powers  of  chancery  are  vested  in  the  Common 
Law  courts.  In  some  states,  there  are  separate  Probate 
courts,  and  in  some,  the  duties  of  Probate  courts  are  per- 
formed by  the  courts  of  Common  Pleas.  So,  also,  crim- 
inal and  civil  courts  are  sometimes  separate  and  sometimes 
conjoined. 

These  variations  in  fact,  however,  amount  to  nothing  ; 
for,  in  substance,  the  same  general  system  of  laws  pervades 
all  the  states,  and  is,  with  some  necessary  changes,  mod- 
eled on  the  laws  and  courts  of  England.  In  the  state  of 
Louisiana,  indeed,  there  is  an  exception.  The  civil  code, 
or  Roman  law,  prevails  there. 


190  GENERAL    PRINCIPLES. 


CHAPTER  V. 

THE  NATURE  AND  GENERAL  PRINCIPLES  OF  THE 
GENERAL  AND  STATE  GOVERNMENTS. 

§  488.  There  are  certain  general  principles  which  per- 
vade the  federative  system  of  the  United  States  govern- 
ment. We  shall  state  these,  with  a  citation  of  the  several 
parts  of  the  Constitution  upon  which  they  rest,  without 
any  further  comment  upon  them  : 

§  489.  Proposition  J.  The  government  of  the  United 
States  is  a  Repvblic.  Refer  to  the  7th  definition  (page  20), 
and  then  to  article  1,  section  1st  and  section  2d,  of  the 
United  States  Constitution. 

§  490.  Proposition  2.  The  government  of  the  United 
States  is  a  Federative  Republic.  See  article  1st,  section 
2d  and  section  3d ;  article  4,  sections  2d,  3d  and  4th. 

§  491.  Proposition  3.  The  government  of  the  United 
States  is  a  Democratic  Federative  Republic.  See  defini- 
tion 8th  (page  21),  also,  article  1,  section  1st,  and  section  2d 
and  section  3d.  Refer  to  the  state  Constitutions  for  the 
right  of  suffrage,  vesting  the  power  of  election  in  the  whole 
body  of  the  people. 

§  492.  Proposition  4.  The  democracy  of  the  United 
States  is  a  Representative  Democracy.  Senators,  represen- 
tatives and  electors  are  chosen.  See  article  1,  section  2d 
and  section  3d  ;  article  2d,  section  1st  and  section  2d. 

§493.  Proposition5.  The  foundation  of  the  govern- 
ment is  the  consent  of  the  people.  See  the  Declaration  of 
Independence. 

§  494.  Proposition  6.  The  sanction  of  the  govern- 
ment is  responsibility  to  the  people.  Refer  to  modes  of  elec- 
tion for  representatives,  article  1,  section  2d,  of  the  Con- 
stitution ;  for  executive,  article  2,  section  1st ;  for  impeach- 
ment, article  1,  section  3d  ;  for  power  of  appointment,  see 
article  2d,  section  2d.  The  judiciary  is  appointed  by  the 
President,  who  is  responsible  to  the  people. 


NATURE    AND    PRINCIPLES    OF   THE  19  J 

§  495.  Proposition  7.  The  principle  of  the  govern- 
ment is  the  virtue  of  the  people.  Upon  what  other 
foundation  can  republican  government  rest  %  Refer  to 
the  history  of  Greece,  Rome,  and  France. 

§  496.  Proposition  8.  The  Constitution  of  the  United 
States  proceeds  from  the  people,  in  their  sovereign  capaci- 
ty. Refer  to  article  7th  of  the  Constitution,  and  to  the 
terms  of  the  original  ratifications  by  the  states. 

§  497.  Proposition  9.  The  Constitution  of  the  United 
States  acts  upon  both  individuals  and  states.  For  its  ac- 
tion on  the  states,  refer  to  article  1,  section  3d,  section  4th 
and  section  10th.     For  individuals,  see  art.  1;  section  8th. 

§498.  Proposition  10.  The  Constitutions  of  the  states 
act  upon  individuals,  but  not  upon  the  government  of  the 
United  Slates  nor  upon  each  other. 

Thaf  they  act  upon  individuals,  refer  to  the  state  Con- 
stitutions. That  they  do  not  act  on  each  other  is  evident, 
because  they  are  independent  and  sovereign  as  to  each 
other. 

That  they  cannot  exercise  any  power  over  the  national 
government,  is  decided  by  the  Supreme  Court.  See 
M'Cullough  vs.  the  state  of  Maryland,  4th  vol.  Wheaton's 
Reports,  316. 

§499.  Proposition  11.  The  government  of  the  United 
States  is  not  a  mere  league.  The  powers  vested  in  the 
national  government  prove  this.  For  a  complete  exposi- 
tion of  this  point,  see  President  Jackson's  Proclamation, 
10th  December,  1832. 

§500.  Proposition  12.  The  government  of  the  United 
States  is  sovereign  in  its  national  capacity.  For  a  nation  to 
be  sovereign,  it  must  govern  itself.  Now,  the  government 
of  the  United  States  does  govern  itself.  It  lays  taxes,  de- 
clares war,  makes  peace,  enters  into  treaties,  coins  money, 
regulates  commerce.  See  article  1,  section  8th;  article  2, 
section  2d  ;  article  3,  section  2d. 

§501.  Proposition  13.  The  governments  of  the  states 
are  sovereign  in  their  Municipal,  and  are  not  sovereign 
in  a  National,  capacity.  Refer  to  the  state  Constitutions 
for  the  objects  of  state  legislation.     Refer  to  article   1, 


192  GENERAL    AND    STATE    GOVERNMENTS. 

section   10th,  for  the  prohibitions^  in   the  United   States 
Constitution,  on  state  power. 

§  502.  The  above  propositions  are  sufficient  to  show 
the  nature  and  general  principles  of  the  United  States 
Government.  The  American  people  are  one  nation,  gov- 
erning; itself,  by  virtue  of  the  original,  natural  and  inhe- 
rent rights  of  man.  The  government  thus  constituted  has 
no  foundation  but  the  common  consent  of  the  governed, 
and  no  sustaining  principle  but  the  virtue  and  capacity  of 
the  people  to  govern  themselves.  This  government  is 
two-fold — one  a  national  government,  and  one  the  govern- 
ment of  states,  united  with  one  another.  Both  these  forms 
of  government  are  founded  on  the  Representative  system. 
The  whole  constitutes  a  Democratic  Federative  Republic. 
It  is  a  government  which,  proceeding  from  the  people, 
exists  only  at  their  pleasure ;  but  within  its  constitutional 
limits,  has  absolute  authority  over  individuals.  The  laws, 
both  of  national  and  state  governments,  constitutionally 
enacted,  are  of  binding  obligation  upon  all  individuals 
within  their  jurisdiction.  It  is  a  government  of  laws,  but 
of  laws  sustained  by  the  whole  community. 


PRACTICAL    OPERATION   OF   THE  ^93 


CHAPTER  VI. 

PRACTICAL    OPERATION    OF    THE    NATIONAL 
CONSTITUTION. 

§  503.  When  the  Constitution  had  been  ratified  by  the 
requisite  number  of  states,  it  had  acquired  its  legal  force, 
but  was  inert  till  properly  put  into  operation.  The  peo- 
ple had  made  it  .an  instrument  of  great  and  beneficent 
powers,  but  their  action  under  it  was  necessary  to  give  it 
life.  The  mode  of  doing  this  had  been  provided  by  the 
convention.  They  had  "  resolved,  that  as  soon  as  the  con- 
ventions of  nine  states  should  have  ratified  the  Constitu- 
tion, Congress  should  fix  a  day  on  which  electors  should 
be  appointed  by  the  states  which  should  have  ratified  ihe 
same,  and  a  day  on  which  electors  should  assemble  to 
vote  for  President,  and  the  time  and  place  of  commencing 
proceedings  under  the  Constitution.  That,  after  such  pub- 
lication, the  electors  should  be  appointed,  and  the  senators 
and  representatives  elected,"  and  such  other  regulations 
as  were  necessary,  &c.  ;  and  that,  "after  the  President 
was  elected,  he  and  Congress  should,  without  delay,  pro- 
ceed to  execute  the  Constitution." 

§  504.  Accordingly,  Congress,  after  the  ratification  of  a 
sufficient  number  of  states,  in  July,  1788,  Ordered,1  that 
the  several  ratifications  of  the  Constitution  of  the  United 
States  be  referred  to  a  committee,  to  examine  and  report  an 
act  for  putting  said  Constitution  into  operation.  A  com- 
mittee was  appointed,  and  the  following  resolution  passed:2 
"  Resolved,  that  the  first  Wednesday  in  January  next  be 
the  day  for  appointing  the  electors  in  the  several  states, 
which,  before  said  day,  shall  have  ratified  the  Constitu- 
tion ;  that  the  first  day  in  February  next  be  the  day  for 
the  electors  to  assemble  in  their  respective  states,  and  vote 
for  a  President ;  and  that  the  first  Wednesday  in  March 
next  be  the  time,  and  the  present  seat  of  Congress  the 

1  Elliott's  Debates,  221 .  2  idem,  222. 

17 


194  NATIONAL    CONSTITUTION. 

place  for  commencing  proceedings  under  said   Consti- 
tution." 

§  505.  In  pursuance  of  this  resolution,  the  elections  in 
the  several  states  were  held  at  the  time  appointed  ;  and 
on  Wednesday,  the  ith  of  March,  1789,  the  Constitution 
went  into  practical  operation.  On  the  30th  April,  George 
Washington,  unanimously  elected,  was  inauguratedPresi- 
dent  of  the  United  States.  Subsequently  to  this,  North 
Carolina  and  Rhode  Island,  which  had  not  then  ratified, 
joined  the  Union.  Soon  after,  a  number  of  amendments, 
the  effect  of  which  we  have  heretofore  considered,  were 
recommended  to  the  states  by  two-thirds  of  Congress,  and 
adopted. 

§  506.  Thus  the  operation  of  the  Federal  Government 
was  begun.  The  arrangement  of  the  Judiciary,  the  rules 
of  proceedings,  the  organization  of  the  departments,  and 
the  appointment  of  officers,  were  within  the  power  of 
Congress  and  the  Executive,  and  formed  the  earliest  ob- 
jects of  their  consideration. 

.§  507.  In  practice,  as  well  as  theory,  the  government 
is  divided  into  three  great  departments,  having  distinct 
duties  to  perform — the  Executive,  the  Legislative,  and  the 
Judicial.  In  this  order  we  shall  consider  the  practical 
operation  of  the  government. 

I.    OF    THE    EXECUTIVE. 

§  508.  By  article  2,  section  1st,  of  the  Constitution,  the 
executive  'power  is  vested  in  the  President.  By  section  2d, 
he  is  commander  in  chief 'of  the  army,  of  the  navy,  and  of 
the  militia,  when  called  into  actual'service.  He  may  re- 
quire the  opinion,  in  writing,  of  the  principal  officers  of 
the  executive  departments,  upon  any  subject  relating  to 
the  duties  of  their  offices,  and  has  power  to  grant  reprieves, 
pardons,  &c,  &c.  He  has  the  appointment,  in  conjunc- 
tion with  the  Senate,  of  embassadors,  other  public  min- 
isters, consuls,  judges  of  the  Supreme  Court,  and  all 
other  officers  of  the  United  States,  except  those  inferior 
officers  whose  appointment  the  Congress  may  vest  in 
the  heads   of    departments,    courts,   &c.     He    receives 


PRACTICAL    OPERATION    OF   THE  J 95 

embassadors  and  other  public  officers,  takes  care  that  the 
laws  are  faithfully  executed,  and  commissions  officers. 

§  509.  These  are  all  the  general  duties  annexed  by  the 
Constitution  to  the  office  of  President.  We  have  already 
seen  that  they  could  not  be  performed  till  Congress  had 
first  erected  the  offices  which  were  to  be  filled,  and  enacted 
the  laws  which  were  to  be  executed.  We  shall  now  see 
how  this  was  done. 

§  510.  The  constitutional  duties  above  enumerated, 
comprehend  all  the  executive  duties  of  the  government; 
for  the  President  is  the  only  executive  officer  known  to 
the  Constitution,  and  the  only  one  responsible  to  the  peo- 
ple. The  duties,  however,  are  obviously  too  numerous 
and  various  for  one  man ;  hence,  the  Constitution  con- 
templated the  appointment  of  inferior  officers,  and  the  di- 
vision of  labor  among  subordinates.  For  this  purpose, 
Congress  has,  at  different  times,  created  the  Departments 
of  State,  Treasury,  War,  Navy,  Post-office,  Attorney  Gen- 
eral and  Home  Department.  The  duties  of  each  of  these 
departments  have  been  prescribed,  and  may  be  consid- 
ered separately. 

I.    OF   THE    DEPARTMENT   OF   STATE. 

§  511.  This  department  was  created  by  the  act  of  the 
'15th  September,  1789.  The  presiding  officer  is  called 
Secretary  of  State,  and,  like  other  officers,  is  commission- 
ed with  the  advice  and  consent  of  the  Senate.  His  duty 
is  to  conduct  the  foreign  affairs  of  the  United  States, 
whether  by  correspondence,  commissions,  instructions,  or 
memorials,  with  foreign  powers  or  public  ministers.  He 
keeps  the  seal  of  the  United  States,  and  affixes  it  to  all 
civil  commissions,  provided  they  have  the  signature  of  tbe 
President.  He  is  intrusted  with  the  publication  and 
distribution  of  all  acts  and  resolutions  of  Congress, 
and  all  treaties  with  foreign  nations,  and  Indian  tribes.1 
He  preserves  the  original  of  all  treaties,  public  doc- 
uments, laws,  and  correspondence  with  foreign  powers; 
he  preserves  copies  of  the  several  statutes  of  the  states, 
1  Act  of  April  20th,  1818 


196  NATIONAL    CONSTITUTION. 

grants  passports  to  citizens,  and  controls  the  Patent 
Office. 

§  512.  These  duties  may  be  divided  into  classes.  1. 
Those  which  concern  foreign  intercourse ;  2.  Those 
which  concern  the  preservation  and  distribution  of  the 
laws  ;  3.  Which  regard  the  authenticity  of  commissions ; 
4.   Those  which  concern  copyrights  and  patents. 

1.  Of  Foreign  Intercourse. — It  is  necessary  that  nations 
should  hold  intercourse  together,  for  the  purpose  of  regu- 
lating trade,  avoiding  injuries,  and  terminating  differences. 
It  is  equally  obvious  that  they  cannot  treat  together  im- 
mediately, as  two  individuals  ;  they  must,  therefore,  hold 
their  conferences  by  means  of  delegates — that  is,  by  pub- 
lic ministers.1 

§513.  A  public  minister  properly  signifies  any  one 
charged  with  public  affairs,  but  is  here  understood  as  one 
who  is  charged  with  the  care  of  public  affairs  at  a  foreign 
court.     Of  these,  there  are  now  several  orders. 

§  514.  The  highest  order  is  one  which  properly  repre* 
sents  the  government,  or  sovereignty,  and  is  entitled  to  act 
for  it  upon  all  occasions.  A  person  of  this  rank  is  called 
an  Embassador? 

§  515.  The  next  rank  is  that  of  Envoy.  This  term 
signifies  one  who  is  sent,  and  means  a  minister  sent  for  a 
particular  purpose — as  to  adjust  a  special  commercial 
treaty,  or  arrange  disputed  boundaries.  There  are  envoys 
ordinary  and  extraordinary ;  of  the  same  rank,  also,  are 
ministers  plenipotentiary,  who  are  sent  with  powers  to 
make  a  particular  treaty:  thus,  Messrs.  Adams,  Clay,  Sic, 
were  Ministers  Plenipotentiary  to  form  the  Treaty  of 
Peace  at  Ghent. 

§  516.  The  third  order  is  that  of  Ministers  Resident, 
or  Charge  d)  Affaires — which  means  one  who  is  charged 
with  the  ordinary  affairs  of  the  nation  at  a  foreign  court. 

§  517.  These  are  all  the  orders  of  public  ministers 
as  commonly  understoood,  resident,  at  foreign  courts. 
There  are,  however,  several  other   classes  of  public  offi- 

1  Vattel's  Law  of  Nations,  book  iv,  chap,  v,  sect.  55,  56. 

2  Idem,  chap,  vi,  sect.  71,  72. 


PRACTICAL    OPERATION    OF    THE  197 

cers,  through  whom  intercourse  is  held  with  foreign 
nations. 

§  518.  To  each  foreign  embassy  is  attached  a  Secretary 
of  Legation.  This  officer  performs  the  duties  of  a  secre- 
tary, or  clerk,  to  the  mission,  and  is  frequently  left  in 
charge  of  affairs  when  a  minister  is  recalled. 

§  519.  Consuls  are  commercial  agents,  appointed  to  re- 
side in  the  seaports  of  foreign  countries,  with  a  commis- 
sion to  watch  over  the  commercial  rights  and  privileges 
of  the  nation  deputing  them.1 

Their  duties  are  limited  and  defined  in  treaties  of  com- 
merce, and  by  the  statute  regulations  of  the  country  they 
represent.  No  nation  is  bound  to  receive  a  consul,  unless 
it  has  agreed  to  do  so  by  treaty,  and  its  refusal  to  do  so  is 
no  violation  of  peace  and  amity.  They  are,  however, 
almost  universal  among  civilized  nations,  and  are  impor- 
tant both  to  commercial  interests  and  national  affairs. 

§  520.  The  duties  of  consuls,  prescribed  by  the  laws 
of  the  United  States,  may  be  defined  as  follows:  1.  To 
act  as  administrators  upon  the  estates  of  such  American 
citizens  as  die  abroad,  without  leaving  legal  representa- 
tives abroad,  and  then  account  to  the  treasury.  2.  When 
vessels  are  stranded,  to  take  care  of  the  property  and  de- 
liver it  to  the  owners.  3.  To  receive  from  American  ves- 
sels abroad,  their  sea  letters,  legal  documents,  <fcc,  and 
return  them  on  departure  of  the  vessel.  4.  When  a 
crew  is  discharged  abroad,  to  receive  from  each  seaman  a 
month's  pay,  as  a  fund  for  the  relief  of  American  seamen. 
5.  To  provide  for  the  support  and  passage  to  the  United 
States  of  destitute  American  seamen,  in  a  reasonable 
manner. 

These  consuls  are  appointed  by  the  United  States,  in 
all  the  principal  commercial  ports  of  the  world,  and.  their 
great  object  is  to  ascertain  the  legality  of  the  trade  in 
American  vessels,  and  give  protection  and  relief  to  Ameri- 
can seamen  and  citizens. 

§  521.   Credentials.     A    'public    minister  is  known  by 

his  credentials.     2  Letters  of  Credence  are  the  instruments 

1 1  Kent's  Coram.,  40.      2  Vattel,  book  iv,  chap,  vi,  sect.  76,  77. 
17*  r 


198  NATIONAL    CONSTITUTION. 

which  authorize  and  establish  a  minister  in  his  character^ 
with  the  government  to  whom  they  are  addressed  :  they 
are  his  general  Letter  of  Attorney. 

§  522.  Instructions  are  the  secret  letter  of  directions 
given  by  a  government  to  its  minister,  to  inform  him  how 
he  is  to  act  and  what  he  is  to  perform. 

§  523.  For  the  purpose  of  preserving  the  dignity  of 
their  respective  governments,  and  performing  their  duties 
with  safety,  public  ministers  and  their' servants  are,  by  the 
laws  of  'nations,1  allowed  certain  privileges,  viz. : 

§  524.  The  persons  of  ministers  are  sacred  and  in- 
violable among  all  nations.  This  privilege  extends  to  them 
from  the  time  they  first  enter  the  country  to  which  they 
are  sent.  So,  also,  they  are  allowed  personal  safety  in 
all  countries  through  which  they  pass. 

§  525.  lA  public  minister  has  an  entire  independence 
of  the  jurisdiction  and  authority  of  the  state  where  he 
resides.  To  these  rules  there  is  an  ^exception,  in  case  of 
an  embassador's  converting  these  privileges  into  licentious- 
ness. If  an  embassador  abuses  his  privileges  and  com- 
mits wrong,  he  may  be  restrained:  1st,  By  application  to 
his  master,  and  if  he  fail  to  recall  him,  by  ordering  him 
out  of  the  country.  2d,  In  case  he  take  up  arms,  or  com- 
mit open  violence,  he  may  be  quelled  by  force.  In  case 
he  intrigue,  or  form  a  conspiracy,  he  may  be  arrested,  or 
otherwise  disposed  of  according  to  the  exigency  of  the 
case.  A  well  known  instance  of  that  kind  occurred  in 
this  country,  in  the  case  of  Genet,  the  French  minister, 
during  the  administration  of  General  Washington.  ;  The 
President  only  requested  the  French  government  to  recall 
M.  Genet,  which  was  done ;  no  doubt  harsher  measures 
would  have  been  justifiable. 

§  526.  3A  consul  is  not  such  a  public  minister  as  to  be 
entitled  to  the  privileges  of  that  character,  nor  is  he  under 
the  special  protection  of  the  laws  of  nations. 

§  527.  The  credentials  of  foreign  ministers  are  received 
by  the  Secretary  of  State,  and  examined  ;  all  the  business 

1  Vattel,  book  iv,  chap,  vi,  sect.  81,  83,  92,  93. 
2  Pitkin's  Civ.  Hist.,  vol.  ii.        3  Kent's  Comm.,vol.  l,p.43. 


PRACTICAL    OPERATION   OF    THE  199 

and  correspondence  is  carried  on  by  him  :  it  is  in  writing 
and  placed  on  record. 

§  528.  The  other  duties  of  the  Secretary  of  State  are  to 
grant  passports  to  citizens  visiting  foreign  countries  ;  to 
preserve  the  originals  of  public  documents,  and  to  publish 
the  laws,  resolutions  and  orders  of  Congress;  to  publish 
a  biennial  catalogue  of  public  officers  ;  to  authenticate 
commissions  with  the  seal  of  the  United  States;  and,  in 
general,  to  perform  all  the  duties  which  appertain  to  the 
authentication  of  national  proceedings  and  intercourse 
with  foreign  nations. 

II.    OF   THE    TREASURY   DEPARTMENT. 

§  529.  The  object  of  this  department  is  to  manage  the 
monied  concerns  of  the  government.  The  general  duties 
of  the  Secretary  of  the  Treasury  are  to  receive  and  dis- 
burse the  public  revenues ;  to  propose  and  digest  plans  for 
the  improvement  and  management  of  the  public  revenue 
and  the  support  of  public  credit;  and  to  make  reports  to 
Congress  upon  all  matters  referred  to  him. 

To  enable  him  to  perform  these  duties — many  of  which, 
in  relation  to  auditing  public  accounts  and  collecting  the 
revenue,  are  of  a  complicated  character — the  business  of 
the  treasury  department  is  subdivided  among  several  sub- 
ordinate officers.     These  are: 

First  Comptroller,  who  examines  and  certifies  the  ac- 
counts and  balances  of  the  1st  and  5th  auditors. 

Second  Comptroller,  who  examines  and  certifies  the 
accounts  of  the  2d,  3d  and  4th  auditors,  and  keeps  a  record 
of  requisitions. 

First  Auditor  receives  and  examines  the  accounts  in 
relation  to  the  revenue  and  civil  list ;  certifies-  balances, 
and  transfers  them,  with  vouchers,  to  the  1st  comptroller. 

Second  Auditor  receives  and  settles  accounts  in  rela- 
tion to  the  pay,  subsistence,  forage,  clothing,  hospitals,  ar- 
mories, arsenals,  ordnance,  recruiting  service,  and  contin- 
gencies of  the  army,  and  those  accounts  relative  to  the 
disbursements  of  the  Indian  service. 

Third  Auditor  examines  and  settles  the  accounts  rela- 


/& 


is&U-*****^ 


200  NATIONAL    CONSTITUTION. 

tive  to  the  Quarter-Master's  department  of  the  army,  the 
military  academy,  fortifications  and  roads. 

Fourth  Auditor  examines  the  accounts  of  the  navy 
department,  and  certifies  them,  with  vouchers,  to  the  2d 
Comptroller. 

Fifth  Auditor  is  charged  with  the  revision  and  settle- 
ment of  accounts  in  relation  to  the  state  department,  the, 
general  post-office  and  the  Indian  department. 

The  Treasurer  receives  and  keeps  the  public  moneys, 
and  disburses  the  same  upon  warrants  drawn  by  the  Sec- 
retary and  countersigned  by  the  Comptroller. 

The  Register,  keeps  all  accounts  of  the  receipts  and 
expenditures  of  public  moneys 

The  Solicitor  of  the  Treasury  is  a  law  officer,  who 
superintends  the  civil  suits  commenced  in  the  name  of  the 
United  States,  until  they  come  into  the  Supreme  Court 
of  the  United  States,  when  they  pass  into  the  hands  of 
the  Attorney  General. 

III.   of  the  war  department. 

§  530.  This  is  one  of  the  original  departments,  having 
been  organized  in  August,  1789.  The  general  duties  of 
the  Secretary  of  War  are,  a  superintendence  overall  mil- 
itary affairs. 

§  53 1.  In  order  to  facilitate  business,  this  department  is 
divided  into  the  following  subdivisions,  the  nature  of  which 
may  be  understood  by  their  titles : 

1.  The  War  Office  is  the  office  of  the  Secretary  and 
his  correspondence. 

2.  The  Requisition  Bureau,  in  which  the  requisitions 
of  the  war  department  on  the  Treasury  are  made  out. 

3.  The  Bqjjnty  Land  Office. 

4.  The  General  Staff  Office. 

5.  Office  of  the  Adjutant  General. 

6.  Engineer  Bureau. 

7.  Topographical  Bureau. 

8.  Ordnance  Department. 

9.  Quarter  Master's  Department. 
10.  Purchasing  Department. 


practical  operation  of  the  201 

1 1 .  Pay  Department. 

12.  Subsistence  Department. 

13.  Medical  Department. 

IV.    OF    THE  NAVY  DEPARTMENT. 

§  532.  The  Navy  department  was  not  created  till  ten 
years  after  the  establishment  of  the  government.  The 
office  of  Secretary  of  the  Navy  was  created  by  the  act  of 
the  30th  of  April,  1798.  He  is,  by  usage,  a  member  of 
the  Cabinet,  and  holds  his  office  at  the  will  of  the  Presi- 
dent. He  has  a  general  superintendence  of  the  naval* 
establishments,  and  appoints  such  clerks,  navy  agents,  and 
other  subordinate  officers  as  are  necessary  to  the  duties  of 
that  department. 

§  533.  A  Board  of  Navy  Commissioners  was  estab- 
lished in  1815.  Their  office  is  attached  to  that  of  the  Sec- 
retary of  the  Navy,  and  he  discharges  all  the  ministerial 
duties  of  said  office,  relative  to  the  construction,  arma- 
ment, equipment,  naval  stores,  and  materials  of  vessels  of 
war.  They  have  clerks,  a  draughtsman,  messenger,  &c., 
for  their  ordinary  business. 

V.    THE    POST-OFFICE    DEPARTMENT. 

§  534.  The  practical  operations  of  the  Post-office  de- 
partment have  been  in  existence  ever  since  the  Revolu- 
tion ;  but  the  organization  of  the  department  in  its  present 
form,  was  made  by  the  act  of  April  30th,  1810.  The 
office  is  under  the  direction  of  a  Postmaster  General,  with 
three  assistants,  and  such  clerks  and  other  officers  as  are 
necessary. 

The  business  of  the  Post  office  department  is  to  trans- 
mit the  mail,  and  distribute  its  contents  throughout  the 
United  States.  For  this  purpose,  the  Postmaster  General 
has  the  arrangement  of  mail  routes,  the  decision  on  mail 
contracts,  the  appointment  of  postmasters,  and,  in  one 
word,  the  supervision  of  the  whole  mail  arrangement  of 
the  country.  The  enumeration  of  the  following  subordi- 
nate offices  of  the  department,  will  show  in  what  manner 
this  business  is  divided  : 


202  NATIONAL    CONSTITUTION, 

First  Assistant  Postmaster  General. 
Book  keeper's  Office, 
Solicitor's  Office, 
Pay  Office, 
Examiner's  Office, 
Register's  Office. 
Second  Assistant  Postmaster  General. 

Office  of  Appointments  and  Instructions, 
Dead  Letter  Office, 
Office  of  Mail  Depredations. 
•  Third  Assistant  Postmaster  General. 

Office  of  Mail  Contracts. 

VI.    HOME    DEPARTMENT. 

§  535.  This  is  a  new  department,  created  by  the  act  of 
March  3d,  1849.  The  Secretary  of  the  Home  depart- 
ment takes  his  place,  as  other  Secretaries,  in  what  is  call- 
ed the  Cabinet.  The  Secretary  of  the  Home  department 
has  a  supervisory  power  over  those  bureaus,  or  offices, 
which  have,  by  law.  been  transferred  from  other  depart- 
ments to  constitute  the  new  department.  The  subordi- 
nate bureaus  attached  to  this  office  are  these,  viz. : 

1.  The  Land  Office, 

2.  The  Patent  Office, 

3.  The  Indian  Department, 

4.  The  Bureau  of  Pensions, 

5.  The  Coast  Survey. 

§  536.  The  Commissioner  of  the  General  Land  Office 
superintends  the  surveys,  sales  and  records  of  the  public 
lands  of  the  United  States.  In  a  country  of  such  vast 
public  domain  as  this,  the  business  of  the  General  Land 
Office  is  very  extensive.  To  transact  it,  there  are  the  fol- 
lowing subordinate  officers : 

1.  Surveyors  General, 

2.  Registers  of  the  Land  Office, 

3.  Receivers  of  the  Land  Office. 

§  537.  The  Surveyors  General  (of  whom  there  are 
now  seven)  survey  the  public  lands  accurately  into  squares 
of  six  hundred  and  forty  acres  each,  called  sections ;  and 


PRACTICAL  OPERATION  OF  THE  203 

these  again  into  smaller  squares  of  three  hundred  and 
twenty,  one  hundred  and  sixty,  eighty,  and  forty  acres,  in 
which  tracts  they  are  sold. 

§  538.  The  Registers  record  the  sales,  issue  certificates, 
and  procure  patents. 

§  539.  The  Receivers  receive  the  money  arising  from 
the  sales,  and  account  for  it  to  the  government. 

§  540.  The  Commissioner  for  Indian  Affairs  has 
charge  of  the  Indian  bureau.  This  office  is  charged  with 
the  making  treaties,  holding  intercourse,  and  all  business 
connected  with  the  Indian  tribes.  This  is  chiefly  con- 
ducted by  officers  called  Indian  agents. 

§  541.  The  Commissioner  of  Patents  has  charge  of 
the  Patent  Office  and  the  statistics  of  agriculture.  The 
laws  of  the  United  States,  under  the  Constitution,  author- 
ize a  patent  to  be  issued  to  inventors  and  discoverers. 
They  must  first  make  a  specification  of  what  the  inven- 
tion is,  and  if  a  machine,  furnish  a  model.  A  patent, 
however,  cannot  be  issued  when  there  is  already  one  for 
the  same  machine.  The  Commissioner  of  Patents  decides 
on  all  such  matters,  and  takes  charge  of  all  the  business 
connected  with  patents. 

§  542.  The  Commissioner  of  Pensions  has  charge  of 
the  payment  of  pensioners.  These  are  a  large  class,  and 
pension  agencies  are  established  in  most  of  the  large 
towns  of  the  United  States. 

543.  The  Superintendent  of  the  Coast  Survey  is 
also  under  the  supervision  of  the  Home  department.  This 
office  was  established  for  the  trigonometrical  survey  of  the 
coast,  for  the  greater  accuracy  of  geography  and  the  se- 
curity of  commerce. 

vn.  the  attorney  general. 

§  544.  The  Attorney  .General  is  also,  by  courtesy,  a 
member  of  the  Cabinet.  His  office  is  not  so  much  that 
of  an  executive  department  of  the  government  as  that  of  a 
counsellor  to  the  Executive.  He  is,  in  fact,  the  law  offi- 
cer of  the  government.  In  this  respect,  however,  he  is 
rather  the  superintendent  of  law  affairs  than  the  attorney 


204  NATIONAL    CONSTITUTION. 

in  particular  suits.  He  attends  to  the  business  when  pre- 
pared in  detail,  and  argues  cases  before  the  Supreme 
Court. 

The  business  of  the  Treasury  and  other  departments 
at  Washington,  is  attended  to  by  the  Solicitor  of  the  treas- 
ury. The  local  business  of  the  United  States  in  the  sev- 
eral states,  is  attended  to  by  an  official  in  each  judicial 
district,  called  the  United  States  District  Attorney. 

I.    THE    MINT. 

§  545.  This  is  not  a  separate  department,  but  may  be 
regarded  as  a  separate  bureau  of  the  government.  The 
Constitution  has  made  gold  and  silver  a  legal  tender,1  so 
far  as  regards  the  laws  of  the  states,  and  has  forbidden  the 
states  to  coin  money.  The  duty,  therefore,  of  coining 
money,  devolves  upon  the  national  government,  and  hence 
Congress  has  instituted  the  office  of  the  mint  for  that  pur- 
pose. The  law  for  this  purpose  was  enacted  April  2d, 
1792. 

The  office  of  the  Mint  has  a  general  Director,  who  is 
the  chief  of  the  establishment ;  a  chief  coiner,  who  attends 
to  the  coining ;  an  assayer,  who  tests  the  purity  of  the 
metal;  an  engraver,  who  prepares  the  dies  for  the  coin  ; 
a  melter  and  refiner,  who  melts  the  metal  and  prepares  it 
in  bars  and  ingots  for  the  rolling  mill  ;  and  a  treasurer, 
who  receives  and  gives  receipts  for  all  metals  legally 
brought  to  the  Mint. 

.§  546.  Every  person  is  allowed  to  bring  gold  and  silver 
bullion  to  the  Mint  to  be  coined,  and  it  is  coined  as  soon 
as  practicable  after  it  is  brought  there.  If  it  be  of  the 
standard  value  of  the  United  States,  it  is  coined  free  of 
expense.     If  not,  it  is  coined  at  the  expense  of  the  owner. 

II.    OPERATION    OF    THE    LEGISLATURE. 

§  547.   The  operation  of  the  National  Legislature  con- 
sists in  the  exercise  of  the  law-making  power.     Congress 
consists  of  two  branches,  the   Senate   and  the  House  of 
Representatives.     The  organization  of  these  bodies  re- 
1  Article  2,  section  10th. 


PRACTICAL    OPERATION    OF    THE  205 

spects,  1st,  their  Officers,  2d,  their  Committees,  and  3d, 
their  Rules. 

§  548.  Of  their  officers:  there  are  in  each  a  presiding  offi- 
cer. In  the  Senate,  this  is  the  Vice  President,  if  present. 
If  not,  one  of  the  Senators  elected  pro  tern.  In  the  House, 
it  is  the  Speaker,  elected  by  the  House.  The  duties  of 
the  Speaker  (and  those  of  the  presiding  officer  of  the  Sen- 
ate) are  to  preside  and  keep  order  in  the  Assembly ;  to 
appoint  committees,  unless  specially  directed  otherwise 
by  the  House ;  to  sign  all  acts,  addresses  and  joint  reso- 
lutions passed,  and  all  writs,  warrants  and  subpoenas  is- 
sued by  the  House.  He  puts  all  questions  to  the  House, 
and,  in  case  of  ballot,  is  entitled  to  vote  ;  in  other  cases  he 
is  not,  unless  the  House  is  equally  divided,  or  his  vote 
would  make  it  equal. 

§  549.  Each  House  has,  also,  a  Clerk.  His  duty  is  to 
make  a  complete  journal  of  the  proceedings  of  the  House  ; 
to  procure  the  printing  of  such  bills,  reports,  documents, 
<fcc,  as  are  necessary  to  the  business  of  the  House  ;  and 
transact  all  such  business  as  pertains  to  the  duties  of  a 
recording  officer. 

§  550.  Each  House  has,  ajso,  a  Sergeant-at-Arms  and 
a  Door-keeper.  The  Sergeant-at-Arms  is  the  ministeri- 
al officer  of  the  House,  and  executes  its  commands,  issues 
its  processes,  and  performs  functions  similar  to  those  of  a 
sheriff  The  office  and  duties  of  Door-keeper  are  explain- 
ed by  the  name. 

§  55 1 .  The  chief  business  of  legislation  is  done  by  com- 
mittees in  each  Assembly.  To  these,  matters  of  business 
are  referred  for  examination  and  report.  In  the  House, 
the  committees  are  appointed  by  the  Speaker  ;  in  the  Sen- 
ate, by  ballot.  In  the  House  they  consist  of  seven  mem- 
bers each,  and  in  the  Senate  of  five. 

§  552.  The  committees  are  appointed  in  reference  to  the 
chief  subjects  of  legislation.  The  principal  committees 
are  : 

The  committee  on  Foreign  Relations. 

The  committee  on  Commerce. 

The  committee  on  the  Judiciary. 

13  J 


206  NATIONAL    CONSTITUTION. 

The  committee  on  Military  Affairs. 

The  committee  on  Manufactures. 

The  committee  on  Agriculture. 

The  committee  on  Naval  Affairs. 

The  committee  on  Ways  and  Means. 

$  553.  The  committee  of  Ways  and  Means  is  peculiar 
to  the  House  of  Representatives,  because,  by  the  1st  arti- 
cle, 7th  section  of  the  Constitution,  all  u  bills  for  raising 
revenue  "  must  originate  in  the  House  of  Representatives. 
Hence,  the  House  appoint  a  committee  of  "Ways  and 
Means,"  which  has  become,  in  the  course  of  practice,  one 
of  the  most  important  parts  of  the  machinery  of  govern- 
ment, because  in  this  committee  are  first  digested  the 
various  plans  of  revenue. 

§  554.  These  committees  are  called  Standing  Commit- 
tees; but  there  are  also  others,  raised  by  the  House  for 
any  particular  purpose,  called  Select  Committees.  The 
House  may  refer  to  these  committees  any  subject  it  pleas- 
es, and  has  always  power  to  control  its  own  action.  There 
is  one  committee  which  seems,  at  first,  singular.  This  is 
the  committee  of  the  Whole.  In  fact,  the  whole  House  re- 
solves itself  into  a  committee,  and  puts  a  member  in  the 
chair,  for  the  purpose  of  more  free  discussion,  untrammel- 
ed  by  the  rules  of  the  House.  This  committee  of  the 
Whole  rises  and  reports  its  doings  to  the  Speaker  of  the 
House,  in  the  same  manner  as  any  other  committee.  The 
members  when  in  the  House  may,  on  second  thoughts, 
confirm  their  own  doings  or  not. 

§  555.  The  regular  order  of  business  at  the  regular  ses- 
sions of  Congress,  is  as  follows :  1  St,  The  Speaker,  Clerk  and 
officers  are  elected.  The  House  is  then  said  to  be  organized. 
2d,  A  committee  is  then  sent  to  the  President,  to  inform  him 
that  the  House  is  ready  to  receive  a  communication  from 
him.  3d,  The  President's  message  is  then  usually  sent  in. 
4th,  Next,  the  House  refers  the  different  subjects  of  the  mes- 
sage to  different  committees.  5th,  After  these  proceedings, 
the  House  proceeds  in  the  ordinary  business  of  legislation. 

§  556.   The  order  of  daily  business  is: 

1.  Petitions  from  each  state  and  territory 


PRACTICAL  OPERATION  OF  THE         207 

2.  Reports  from  standing  or  select  committees. 

3.  Resolutions. 

4.  The  order  of  the  day,  which  is  the  unfinished  busi- 
ness, or  business  appointed  for  that  particular  day. 

§  557.  To  carry  a  bill  through  the  House,  a  certain 
process  is  necessary.  Thus,  every  bill  must  be  read  three 
times  previous  to  its  passage — usually  on  three  different 
days — and  each  reading  must  receive  the  formal  sanction 
of  the  House. 

The  first  reading  of  a  bill  is  for  information  ;  and  if 
opposition  be  made,  the  Speaker  puts  the  question,  "  Shall 
this  bill  be  rejected  ?"  If  no  opposition  be  made,  or  the 
majority  on  the  question  of  rejection  is  in  its  favor,  the 
bill  goes  to  its  second  reading  without  opposition.  The 
final  vote  is  usually  (not  always)  taken  on  the  third  read- 
ing of  the  bill ;  but  sometimes,  when  the  vote  is  close, 
the  vote  is  also  taken  on  its  passage.  Whenever  a  formal 
vote  is  taken  on  the  third  reading  or  passage,  it  is  taken 
by  yeas  and  nays.  The  members  vote  alphabetically,  as 
their  names  are  called,  in  the  affirmative  or  negative. 

§  558.  The  rules  and  usages  observed  in  the  American 
Congress  are  those  usually  called  Parliamentary  Rules, 
and  are  adopted  from  the  usages  of  the  British  Parlia- 
ment. They  are  all  favorable  to  deliberate  and  prudent 
legislation,  and  to  the  just  rights  of  the  minority. 

§  559.  When  a  billjias  passed,  either  in  the  Senate  or 
House,  it  is  carefully  engrossed  by  the  Clerk,  and  sent  to 
the  other  House  by  a  proper  person.  When  a  bill  has 
passed  both  Houses,  it  is  duly  enrolled- on  parchment  by 
the  Clerk  of  the  House  of  Representatives  or  Secretary  of 
the  Senate,  before  it  is  presented  to  the  President.  It  is 
carefully  examined  by  committees  appointed  in  both 
Houses,  who  make  a  report,  when  it  is  signed  by  the 
Speaker  of  the  House  and  the  President  of  the  Senate, 
and  sent  to  the  President  for  his  signature. 

§  560.  The  signature  of  the  President  is  affixed  to  all 
bills  which  meet  his  approbation,  and  this  completes  the 
last  act  of  'practical  legislation. 


208  NATIONAL    CONSTITUTION. 

III.    OPERATION    OF    THE    JUDICIARY. 

§  561.  By  article  3d,  section  1st,  of  the  Constitution, 
the  judicial  power  of  the  United  Slates  is  vested  in  a  Su- 
preme Court,  and  such  inferior  courts  as  Congress  may 
appoint.  Congress  has  also  power  to  make  all  laws  ne- 
cessary and  proper  to  carry  these  provisions  into  effect,  and 
in  1789,  Congress  passed  the  Judiciary  Act,  which  has 
since  been  frequently  amended,  organizing  the  Supreme 
and  inferior  courts,  and  prescribing  the  mode  of  action. 
The  courts  are,  1st,  A  Supreme  Court,  composed  of  a 
Chief  Justice  and  eight  associate  Justices :  2d,  District 
Judges,  of  which  districts  there  are  now  thirty-eight  in 
number:  and  3d,  A  Circuit  Court,  consisting  of  one 
Judge  of  the  Supreme  Court  and  the  District  Judge,  sit- 
ting together. 

§  562.  The  object  of  the  United  States  Judiciary  is  the 
administration  of  justice  according  to  the  United  States 
laws.  The  jurisdiction  of  these  courts  we  have  defined 
in  another  place.  See  the  discussion  of  the  Judiciary, 
from  paragraph  324  to  paragraph  395. 

§  563.  The  officers  of  the  United  States  courts,  by  which 
they  execute  their  orders,  are  of  four  kinds,  viz. :  Clerks, 
Marshals,  Attorneys  and  Reporters. 

§  564.  The  duty  of  a  Clerk  is  to  keep  an  exact  record 
and  journal  of  all  the  proceedings  of  the  Court,  with  a 
history  of  each  suit,  and  an  entry  of  all  the  orders,  decrees, 
judgments  and  acts  of  the  Court.  This  record  is  of  such 
solemn  import,  that  when  a  cause  has  once  been  decided 
it  cannot  be  impeached,  but  is  conclusive  against  all  the 
parties  to  it,  their  heirs  and  successors,  forever. 

§  565.  The  Marshal  is  the  executive  officer  of  the 
Court.  He  ministers,  or  acts,  for  the  Court,  in  all  its  ex- 
ecutive proceeding.  If  the  Court  make  an  order  or  judg- 
ment, he  enforces  it.  If  resistance  is  made,  he  acts  by 
force,  and  for  this  purpose  has  a  right  to  appoint  deputies, 
and  call  upon  all  bystanders  for  assistance. 

The  Marshal  attends  upon  the  sittings  of  the  Court,  and 
executes  its  process.     He  sometimes  has  other  duties  as- 


NATIONAL    CONSTITUTION.  209 

signed  him  ;  but  his  general  and  proper  duty  is  to  execute 
the  process  of  the  Court. 

§  566.  Attorneys  at  Law  are  persons  supposed  to  be 
learned  in  the  law,  and  as  such,  are  appointed  by  the 
courts  to  practice  law  and  conduct  suits  within  their  juris- 
diction. 

Attorneys  at  Law  are,  properly,  officers  of  the  Court, 
being  appointed  by  the  Court  and  removable  at  the  pleas- 
ure of  the  Court. 

In  the  United  States  Courts,  any  one  may  practice  who 
may  practice  in  the  courts  of  highest  judicature  within 
their  respective  states. 

§  567.  A  Reporter  is  likewise  an  officer  of  the  Court. 
He  is  one  licensed  by  the  Court  to  report  its  judicial  de- 
cisions and  opinions.  Any  one  may,  doubtless,  report  the 
proceedings  of  a  court,  but  they  would  have  no  weight  or 
authority,  unless  done  under  the  sanction  and  inspection 
of  the  court. 

§  568.  The  decisions  of  a  court  are  carried  out  by,  1st, 
A  judgment  or  decree,  in  which  the  court  pronounces  its 
decision,  and  directs  what  must  be  done  :  2d,  By  the  pro- 
cess, by  which  the  judgment  is  executed.  This  process 
may  be  to  imprison  the  body,  or  to  confiscate  and  sell  the 
property  of  a  defendant,  if  judgment  be  given  against 
him.  In  the  case  of  capital  crimes,  the  judgment  may 
direct  the  prisoner  to  be  put  to  death  by  hanging.  In  the 
United  States  courts,  this  process  is  executed  by  the  Mar- 
shal, who  is  the  executive  and  ministerial  officer  of  the 
court. 

18 


210  STATE    GOVERNMENTS. 


CHAFFER  VII. 

PRACTICAL    OPERATION    OF    THE    STATE    GOVERN- 
MENTS. 

§  569.  The  essential  difference  between  the  National 
and  State  Governments — that  one  regards  national,  or  ex- 
terior affairs,  and  the  other  only  ?nunicipal,  or  interior  af- 
fairs— includes  also  the  chief  difference  between  the  practi- 
cal operation  of  the  state  governments  and  that  of  the 
nation.  The  state  governments,  like  the  national  govern- 
ment, have  the  three  great  departmental  divisions,  viz.  : 
the  Executive,  the  Legislative,  and  the  Judicial  operations. 

I.    THE    EXECUTIVE. 

§  570.  The  duties  of  the  Governors  of  the  several  states 
are,  in  general,  analogous  to  those  of  President  of  the 
United  States  ;  but,  of  course,  confined  to  the  limits  of  the 
state.  Here  we  may  remark,  that  the  Governor  of  a 
state  has  no  political  or  official  power  out  of  a  state  ;  for 
the  limits  of  the  state  are  the  limits  of  his  jurisdiction. 

§  571.   The  principal  duties  of  a  Governor  are  : 

1.  To  command  the  militia  and  military  array  of  the 
state. 

2.  To  see  the  laws  faithfully  executed,  so  far  as  de- 
pends on  the  Executive,  and  not  the  Judiciary. 

3.  To  require  reports  and  opinions  from  the  heads  of 
departments. 

4.  To  communicate  information  to  the  Legislature  on 
the  state  of  public  affairs. 

5.  To  exercise  the  pardoning  power  when  necessary. 

6.  In  some  of  the  states  the  Governor  is  vested  with 
much  of  the  appointing  power  ;  but  in  Ohio,  he  has  none 
except  the  appointment  of  a  very  few  minor  officers. 

§  572.  The  states  generally  have  a  Secretary  of  State, 
a  Comptroller  or  Auditor,  Treasurer,  &c,  in  analogy  with 
the  national  government. 


PRACTICAL  OPERATION  OF  THE  211 

II.  THE  LEGISLATURE. 

§  573.  The  mode  in  which  the  state  Legislatures  act 
in  legislation,  is  almost  exactly  the  same  with  that  of  the 
national  Legislature.  The  state  Legislatures,  like  the 
national  Legislatures,  have  two  branches — the  House  and 
the  Senate.  Each  has  its  Speaker,  Sergeant-at-Arms  and 
Door-keeper.  Each  is  governed  by  the  same  system  of 
parliamentary  rules,  and  the  process  by  which  laws  are 
passed  is  the  same. 

In  some  of  the  states,  the  Governor,  like  the  President 
of  the  United  States,  has  a  veto  power  over  legislation  ; 
but  generally  the  Governors  have  no  such  power. 

III.    THE    JUDICIARY. 

§  574.  The  chief  difference  between  the  national  and 
state  courts,  relates  to  the  jurisdiction  and  the  number  of 
courts.  The  state  courts  have  jurisdiction  over  all  those 
things  of  which  the  courts  of  the  United  States  have  not 
jurisdiction,  and  some  of  which  they  have,  In  fact,  the 
jurisdiction  of  the  state  courts  extends  over  the  whole  mass 
of  municipal  objects,  both  small  and  great.  It  extends 
over  debts  and  obligations,  both  minute  and  large  ;  over 
all  contracts  and  over  all  crimes,  except  those  exclusively 
against  the  laws  of  the  United  States,  which  must  be  tried 
in  the  United  States  district  courts. 

§  575.  In  regard  to  the  number  of  courts,  we  have  seen 
that  the  United  States  courts  are,  the  Supreme,  the  Circuit, 
and  the  District.  In  the  same  manner,  the  states  usually 
have  a  Supreme  Court,  or  Court  of  Appeals,  which  makes 
the  final  decision  of  all  litigated  law  points.  So  they 
have,  generally,  Circuit  Courts  of  inferior  jurisdiction, 
and  also  County  Courts.  So  far,  there  is  a  perfect  analo- 
gy between  the  arrangement  of  the  state  and  national 
courts.  But  in  the  states  there  are  two  or  three  other 
classes  of  courts.  In  nearly  all  the  states  there  are  spe- 
cial Criminal  Courts,  for  the  sole  purpose  of  trying  crim- 
inal prosecutions.  So,  also,  there  are,  in  incorporated 
towns,  usually  a  Municipal  Court,  for  the  trial  of  causes 
within  the  incorporated  jurisdiction.     But  the  chief  differ- 


212  STATE    GOVERNMENTS. 

ence  between  state  and  national  courts  is,  perhaps,  the  in- 
stitution of  Justices  of  the  Peace.  They  are  local 
judges,  holding  a  court  usually  for  the  township  only,  and 
of  small  jurisdiction  in  regard  to  the  magnitude  of  the 
property  involved  in  suit.  Narrow  as  their  jurisdiction 
is,  it  may  be  affirmed  that  they  transact  the  largest  por- 
tion of  the  judicial  business  of  society.  There  are  gen- 
erally several  in  each  township,  and  their  courts  are  held 
every  day. 

§  576.  The  chief  officer  of  the  state  courts  is  the 
Sheriff.  His  is  the  most  ancient  office  we  have,  and 
probably  originated  in  very  remote  antiquity.  Among 
the  Anglo-Saxons  of  England,  the  Earls  held  the  county 
courts,  and  the  Sheriff  was  the  deputy  of  the  Earl.  The 
Sheriff  is  the  ministerial  or  executive  officer  of  all  the 
courts  held  in  the  county.  He  must  serve  all  process, 
execute  all  writs,  and  furnish  all  escorts  and  force  to  ex- 
ecute the  judgments  of  the  court.  He  is  also  a  conserva- 
tor of  the  peace,  and  is  bound  to  arrest  all  who  break,  or 
attempt  to  break,  the  peace.  He  is  also  the  jailer  of  the 
county,  and  must  imprison  and  subsist,  at  the  expense  of 
the  county,  all  persons  sentenced  to  imprisonment  by  or- 
der of  the  court. 

§  577.  The  Constable  is  also  another  officer  peculiar 
to  state  courts.  He  is,  properly,  the  ministerial  officer  of 
the  Justices  of  the  Peace,  and  has  the  same  duties  within  a 
township,  that  a  Sheriff  has  for  a  county,  except  that  of  jailer. 
^  578.  From  this  statement  we  see  that,  as  national 
governments,  the  states  have  very  little  to  do.  All  powers 
of  a  general  nature  are  vested  in  the  general  government. 

Our  work  is  now  ended.  It  contains  little  ingenuity 
and  less  novelty ;  but  the  student  should  recollect,  that 
these  are  not  the  characteristics  of  truth  and  learning  in 
Constitutions  and  Jurisprudence:  let  him  seek,  rather,  the 
accuracy  of  the  legal  historian,  and  a  correct  delineation 
of  our  political  institutions.  From  the  study  of  these,  he 
must  ever  go  forth  increased  in  knowledge,  in  love  of  lib- 
erty, and  the  ardor  of  patriotism. 


CONSTITUTIONAL    LAW. 


213 


CONSTITUTIONAL  LAW— ADDENDA. 

§  579.  Since  the  first  publication  of  this  work,  there 
have  been  several  decisions  by  the  Supreme  Court  of  the 
United  States,  which  have  added  new  light  in  regard  to 
the  true  construction  to  be  put  on  several  clauses  of  the 
Constitution.  Some  of  these  are  here  given  for  the  bene- 
fit of  the  student. 

POWERS    OF    THE    NATIONAL    GOVERNMENT. 

§  580.  The  government  of  the  Union  is  a  government 
of  the  people.  It  emanates  from  them.  Its  powers  are 
granted  by  them,  and  are  to  be  exercised  directly  and  for 
their  benefit. — Massachusetts  vs.  Rhode  Island,  12  Pe- 
ters, 657. 

§  581.  The  government  of  the  Union  is  supreme  with- 
in its  sphere  of  action. — lb. 

EXECUTIVE    POWER. 

§  582.  The  Circuit  Court  of  the  United  States  for  the 
District  of  Columbia,  has  a  right  to  issue  a  mandamus  on 
the  Post  Master  General  of  the  United  States. — Kendall 
vs.  Stokes  et  als.,  12  Peters,  524. 

PRIORITY    OF    UNITED    STATES    CLAIMS. 

§  583.  The  local  laws  of  a  state  cannot  contract  the  op- 
erations of  the  United  States'  act  giving  priority  in  favor 
of  other  creditors. — 9  Peters,  182. 

CONSTRUCTION    OF    STATE    STATUTES. 

§  584.  It  is  the  peculiar  province  and  privilege  of  the 
state  courts  to  construe  their  own  statutes,  and  it  is  no 
part  of  the  functions  of  the  Supreme  Court  to  review  their 
decisions  or  assume  jurisdiction  over  them,  on  the  pre- 
tence that  their  judgments  have  impaired  the  obligation 
of  contracts.  The  Supreme  Court  can  only  restrict  the 
unconstitutional  legislation  of  the  states. — 5  Howard,  317, 
16  Peters,  525. 


214  CONSTITUTIONAL    LAW. 

PROHIBITIONS    ON    STATES. 

§  585.  States  are  not  prohibited  from  passing  retrospec- 
tive laws,  even  though  they  may  affect  prior  rights  ;  but 
only  ex  post  facto  laws. —  Watson  vs.  Mercer,  8  Peters,  88. 

REGULATIONS    OF    COMMERCE. 

§  586.  The  law  of  New  York,  requiring  the  masters 
of  vessels  carrying  passengers  into  New  York,  to  make  a 
report  of  their  names,  ages,  places  of  birth,  &c,  affixing 
a  penalty  to  the  violation  of  that  law,  and  requiring  the 
master  to  give  bonds,  was  held  to  be  constitutional  in  re- 
gard to  the  report  of  names,  &c.  The  act  is  not  a  regu- 
lation of  commerce,  but  a  regulation  of  police. — City  of 
New  York  vs.  Milne,  1 1  Peters,  1 02. 

§  587.  Persons  are  not  the  subjects  of  commerce,  and  a 
law  regulating  their  introduction  is  not  affected  by  the 
reasoning  which  is  founded  upon  the  power  given  to  Con- 
gress to  regulate  commerce. — 11  Peters,  102. 

§  588.  The  law  prohibiting  the  introduction  of  slaves 
into  the  state  of  Mississippi,  as  merchandise  and  for  sale, 
is  constitutional. — Groves  vs.  Slaughter,  15  Peters,  449. 

§  589.  The  state  restrictions  upon  the  sale  of  spiritous 
liquors  in  less  than  a  given  quantity,  are  constitutional. — 
5  Howard,  504. 

RELIGIOUS    LIBERTY. 

§  590.  The  Constitution  of  the  United  States  makes  no 
provision  for  protecting  the  citizens  of  the  several  states 
in  the  enjoyment  of  religious  liberty.  This  is  left  to  the 
Constitutions  and  laws  of  the  states. — 3  Howard,  589. 

WRIT    OF    HABEAS    CORPUS. 

§  591.  The  Supreme  Court  of  the  United  States  has  no 
original  jurisdiction  to  award  the  writ  of  habeas  corpus  to 
bring  up  the  body  of  an  infant  child,  alleged  to  be  unlaw- 
fully detained. — Ex  parte  Barry,  2  Howard,  65. 

EXPATRIATION. 

§  592.  Allegiance,  may  be  dissolved  by  the  mutual 
consent  of  the  government  and  its  citizens. — 3  Peters,  99. 


CONSTITUTIONAL    LAW.  215 

§  593.  The  general  doctrine  is,  that  no  person  can,  by 
an  act  of  his  own,  cut  off  his  allegiance. — 3  Peters,  242. 

FUGITIVE    SLAVES. 

§  594.  The  owner  of  a  fugitive  slave  has  the  same 
right  to  seize  and  take  him  in  a  state  to  which  he  has  es- 
caped or  fled,  that  he  had  in  the  state  from  which  he  es- 
caped ;  and  it  is  well  known  that  this  right  to  seizure,  or 
recapture,  is  universally  acknowledged  in  the  slave-hold- 
ing states. — Prigg  vs.  Pennsylvania,  16  Peters,  539. 


21(3  THE    UNITED    STATES. 


CONSTITUTION  OF  THE  UNITED  STATES. 


Preamble. 
We,  the  people  of  the  United  States,  in  order  to  form  a  more  perfect 
union,  establish  justice,  insure  domestic  tranquillity,  provide  for  the  com- 
mon defence,  promote  the  general  welfare,  and  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity,  do  ordain  and  establish  this  Con- 
stitution for  the  United  States  of  America. 

ARTICLE  I. 
Of  the  Legislature. 
section  i.' 
1.  All  legislative  powers  herein  granted  shall  be  vested  in  a  Congress 
of  the  United  States,  which  shall  consist  of  a  Senate  and  House  of  Re- 
presentatives. 

SECTION  II. 

1.  The  House  of  Representatives  shall  be  composed  of  members 
chosen  every  second  year  by  the  people  of  the  several  states;  and  the 
electors  in  each  state  shall  have  the  qualifications  requisite  for  electors 
of  the  most  numerous  branch  of  the  state  legislature. 

2.  No  person  shall  be  a  representative  who  shall  not  have  attained 
to  the  age  of  twenty-five  years,  and  been  seven  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of 
that  state  in  which  he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  apportioned  among  the 
several  states  which  may  be  included  within  this  union,  according  to 
their  respective  numbers,  which  shall  be  determined  by  adding  to  the 
whole  number  of  free  persons,  including  those  bound  to  service  for  a 
term  of  years,  and  excluding  Indians  not  taxed,  three-fifths  of  all  other 
persons.  The  actual  enumeration  shall  be  made  within  three  years 
after  the  first  meeting  of  the  Congress  of  the  United  States,  and  within 
every  subsequent  term  of  ten  years,  in  such  manner  as  they  shall  by 
law  direct.  The  number  of  representatives  shall  not  exceed  one  for 
every  thirty  thousand,  but  each  state  shall  have  at  least  one  representa- 
tive; and  until  such  enumeration  shall  be  made,  the  state  of  New- 
Hampshire  shall  be  entitled  to  choose  three;  Massachusetts,  eight; 
Rhode  Island  and  Providence   Plantations,   one;   Connecticut,  five; 


CONSTITUTION  OF  017 

New  York,  six;  New  Jersey,  four;  Pennsylvania,  eight;  Delaware, 
one ;  Maryland,  six ;  Virginia,  ten ;  North  Carolina,  five  ;  South  Caro- 
lina, five;  and  Georgia,  three. 

4.  When  vacancies  happen  in  the  representation  from  any  state,  the 
executive  authority  thereof  shall  issue  writs  of  election  to  fill  such 
vacancies. 

5.  The  House  of  Representatives  shall  choose  their  speaker  and 
other  officers;  and  shall  have  the  sole  power  of  impeachment. 

SECTION   III. 

1.  The  Senate*of  the  United  States  shall  be  composed  of  two  sena- 
tors from  each  state,  chosen  by  the  legislature  thereof,  for  six  years; 
and  each  senator  shall  have  one  vote. 

2.  Immediately  after  they  shall  be  assembled,  in  consequence  of  the 
first  election,  they  shall  be  divided  as  equally  as  may  be  into  three 
classes.  The  seats  of  the  senators  of  the  first  class  shall  be  vacated  at 
the  expiration  of  the  second  year,  of  the  second  class  at  the  expiration 
of  the  fourth  year,  and  of  the  third  class  at  the  expiration  of  the  sixth 
year,  so  that  one-third  may  be  chosen  every  second  year;  and  if 
vacancies  happen  by  resignation  or  otherwise,  during  the  recess  of 
the  legislature  of  any  state,  the  executive  thereof  may  make  tempo- 
rary appointments  until  the  next  meeting  of  the  legislature,  which  shall 
then  fill  such  vacancies. 

3.  No  person  shall  be  a  senator  who  shall  not  have  attained  to  the 
age  of  thirty  years,  and  been  nine  years  a  citizen  of  the  United  States, 
and  who  shall  not,  when  elected,  be  an  inhabitant  of  the  state  for 
which  he  shall  be  chosen. 

4.  The  Vice-President  of  the  United  States  shall  be  President  of  the 
Senate,  but  shall  have  no  vote,  unless  they  be  equally  divided. 

5.  The  Senate  shall  choose  their  other  officers,  and  also  a  president 
pro  tempore,  in  the  absence  of  the  .Vice-President,  or  when  he  shall 
exercise  the  office  of  President  of-  the  United  States. 

6.  The  Senate  shall  have  the  sole  power  to  try  all  impeachments: 
when  sitting  for  that  purpose,  the}'  shall  be  on  oath  or  affirmation. 
When  the  President  of  the  United  States  is  tried,  the  Chief-Justice 
shall  preside ;  and  no  person  shall  be  convicted  without  the  concurrence 
of  two-thirds  of  the  members  present. 

7.  Judgment  in  cases  of  impeachment  shall  not  extend  further  than 
to  removal  from  office,  and  disqualification  to  hold  and  enjoy  any  office 
of  honor,  trust,  or  profit  under  the  United  States ;  but  the  party  convict- 
ed shall  nevertheless  be  liable  and  subject  to  indictment,  trial,  judgment, 
and  punishment,  according  to  law. 

SECTION    IV. 

1.  The  times,  places,  and  manner  of  holding  elections  for  senators 
and  representatives,  shall  be  prescribed  in  each  state  by  the  legislature 
thereof;  but  the  Congress  may  at  any  time,  by  law,  make  or  alter  such 
regulations,  except  as  to  the  places  of  choosing  senators. 
19 


218  THB    UNITED    STATES. 

2.  The  Congress  shall  assemble  at  least  once  in  every  year,  and  such 
meeting  shall  be  on  the  first  Monday  in  December,  unless  they  shall  by 
law  appoint  a  different  day.  C*  , 

j,    .  ,j  fit  +<\sO&  *«2  r 

/V/*-/to^t  SECTION    V. 

1.  Each  House  shall  be  the  judge  of  the  elections,  returns,  and  quali- 
fications of  its  own  members,  and  a  majority  of  each  shall  constitute  a 
quorum  to  do  business;  but  a  smaller  number  may  adjourn  from  day  to 
day,  and  may  be  authorized  to  compel  the  attendance  of  absent  mem- 
bers, in  such  manner  and  under  such  penalties  as  each  House  may 
provide.  ■ 

2.  Each  House  may  determine  the  rules  of  its  proceedings,  punish  its 
members  for  disorderly  behavior,  and,  with  the  concurrence  of  two- 
thirds,  expel  a  member. 

3.  Each  House  shall  keep  a  journal  of  its  proceedings,  and  from  time 
to  time  publish  the  same,  excepting  such  parts  as  may,  in  their  judgment, 
require  secrecy ;  and  the  yeas  and  nays  of  the  members  of  either  House, 
on  any  question,  shall,  at  the  desire  of  one-fifth  of  those  present,  be  en- 
tered on  the  journal. 

4.  Neither  House,  during  the  session  of  Congress,  shall,  without  the 
consent  of  the  other,  adjourn  for  more  thnn  three  days,  nor  to  any  other 
place  than  that  in  which  the  two  Houses  shall  be  silting. 

SECTION  VI. 

1.  The  senators  and  representatives  shall  receive  a  compensation  for 
their  services,  to  be  ascertained  by  law,  and  paid  out  of  the  treasury  of 
the  United  States.  They  shall,  in  all  cases,  except  treason,  felony,  and 
breach  of  the  peace,  be  privileged  from  arrest  during  their  attendance  at 
the  session  of  their  respective  Houses,  and  in  going  to  and  returning 
from  the  same ;  and  for  any  speech  or  debate  in  either  House,  they  shall 
not  be  questioned  in  any  other  place. 

2.  No  senator  or  representative  shall,  during  the  time  for  which  he 
was  elected,  be  appointed  to  any  civil  office  under  the  authority  of  the 
United  States,  which  shall  have  been  created,  or  the  emoluments  where- 
of shall  have  been  increased  during  such  time;  and  no  person  holding 
any  office  under  the  United  States,  shall  be  a  member  of  either  House 
during  his  continuance  in  office. 

SECTION  VII. 

1.  All  bills  for  raising  revenue  shall  originatp  in  the  House  of  Repre- 
sentatives; but  the  Senate  may  propose  or  concur  with  amendments  as 
on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  House  of  Representatives  and 
the  Senate,  shall,  before  it  become  a  law,  be  presented  to  the  President  of 
the  United  States;  if  he  approve,  he  shall  sign  it;  but  if  not,  he  shall  re- 
turn it,  with  his  objections,  to  that  House  in  which  it  shall  have  originated, 
who  shall  enter  the  objections  at  large  on  their  journal,  and  proceed  to 
reconsider  it.     If,  after  such  reconsideration,  two-thirds  of  that  House 


CONSTITUTION    OP      *  219 

shall  agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the  objections, 
to  the  other  House,  by  which  it  shall  likewise  be  reconsidered,  and  if 
approved  by  two-thirds  of  that  House,  it  shall  become  a  law.  But  in 
all  such  cases  the  votes  of  both  Houses  shall  be  determined  by  yeas  and 
nays;  and  the  names  of  the  persons  voting  for  and  against  the  bill  shall 
be  entered  on  the  journal  of  each  House  respectively.  If  any  bill  shall 
not  be  returned  by  the  President  within  ten  days  (Sundays  excepted) 
after  it  shall  have  been  presented  to  him,  the  same  shad  be  a  law,  in 
like  manner  as  if  he  had  signed  it,  unless  the  Congress  by  their  adjourn- 
ment prevent  its  return,  in  which  case  it  shall  not  be  a  law. 

3.  Every  order,  resolution,  or  vote,  to  which  the  concurrence  of  the 
Senate  and  House  of  Representatives  may  be  necessary  (except  on  a 
question  of  adjournment),  shall  be  presented  to  the  President  of  the 
United  States;  and  before  the  same  shall  take  effect,  shall  be  approved 
by  him,  or  being  disapproved  by  him,  shall  be  repassed  by  two-thirds  of 
the  Senate  and  House  of  Representatives,  according  to  the  rules  and 
limitations  prescribed  in  ihe  case  of  a  bill. 

SECTION    VIII. 

The  Congress  shall  have  power — 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to  pay  the 
debts  and  provide  for  the  common  defence  and  general  welfare  of  the 
United  States;  but  all  duties,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States: 

2.  To  borrow  money  on  the  credit  of  the  United  States: 

3.  To  regulate  commerce  with  foreign  nations,  and  among  the  seve- 
ral states,  and  with  the  Indian  tribes: 

4.  To  establish  an  uniform  mode  of  naturalization,  and  uniform  laws 
on  the  subject  of  bankruptcies  throughout  the  United  States : 

5.  To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin, 
and  fix  the  standard  of  weights  and  measures: 

6.  To  provide  for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States: 

7.  To  establish  post-offices  and  post-roads  : 

8.  To  promote  the  progress  of  science  and  useful  arts,  by  securing,  for 
limited  times,  to  authors  and  inventors,  the  exclusive  right  to  their  re- 
spective writings  and  discoveries: 

9.  To  constitute  tribunals  inferior  to  the  supreme  court: 

10.  To  define  and  punish  piracies  and  felonies  committed  on  the 
high  seas,  and  offences  against  the  law  of  nations : 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water: 

12.  To  raise  and  support  armies ;  but  no  appropriation  of  money  for 
that  use  shall  be  for  a  longer  term  than  two  years; 

13.  To  provide  and  maintain  a  navy: 

14.  To  make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces : 

15.  To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  invasions  : 


220 


THE    UNITED    STATES. 


16.  To  provide  for  organizing,  arming,  and  disciplining  the  militia, 
and  for  governing  such  part  of  them  as  may  be  employed  in  the  service 
of  the  United  States,  reserving  to  the  states  respectively  the  appoint- 
ment of  the  officers,  and  the  authority  of  training  the  militia  according 
to  the  discipline  prescribed  by  Congress  : 

17.  To  exercise  exclusive  legislation  in  all  cases  whatsoever,  over 
such  district  (not  exceeding  ten  miles  square),  as  may,  by  cession  of 
particular  states,  and  the  acceptance  of  Congress,  become  the  seat  of 
the  government  of  the  United  States ;  and  to  exercise  like  authority  over 
al.  places  purchased  by  the  consent  of  the  legislature  of  the  state  in  which 
the  same  shall  be,  for  the  erection  of  forts,  magazines,  arsenals,  dock- 
yards, and  other  needful  buildings: — And, 

18.  To  make  all  laws  which  shall  be  necessary  and  proper  for  carry- 
ing into  execution  the  foregoing  powers,  and  all  other  powers  vested  by 
this  Constitution  in  the  government  of  the  United  States,  or  in  any  de 
partment  or  officer  thereof.  •?  ,  /    -,•£* 

SECTION  I*.  ' 

1.  The  migration  or  importation  of  such  persons  as  any  of  the  states 
now  existing  shall  think  proper  to  admit,  shall  not  be  prohibited  by  the 
Congress  prior  to  the  year  one  thousand  eight  hundred  and  eight;  but  a 
tax  or  duty  may  be  imposed  on  such  importation,  not  exceeding  ten'dol- 
lars  for  each  person. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended, 
unless  when  in  cases  of  rebellion  or  invasion  the  public  safety  may  re- 
quire it. 

3.  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

4.  No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  proportion 
to  the  census  or  enumeration  herein  before  directed  to  be  taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  state. 

6.  No  preference  shall  be  gh'en  by  any  regulation  of  commerce  or 
revenue  to  the  ports  of  one  state  over  those  of  another :  nor  shall  ves- 
sels bound  to,  or  from  one  state,  be  obliged  to  enter,  clear,  or  pay  duties 
in  another. 

7.  No  money  shall  be  drawn  from  the  treasury  but  in  consequence  of 
appropriations  made  by  law ;  and  a  regular  statement  and  account  of 
the  receipts  and  expenditures  of  all  public  money  shall  be  published 
from  time  to  time. 

8.  No  title  of  nobility  shall  be  granted  by  the  United  States:  and 
no  person  holding  any  office  .of  profit  or  trust  under  them,  shall,  without 
the  consent  of  the  Congress,  accept  of  any  present,  emolument,  office, 
or  title  of  any  kind  whatever,  from  any  king,  prince,  or  foreign  state. 

SECTION  X. 

1.  No  state  shall  enter  into  any  treaty,  alliance,  or  confederation; 
grant  letters  of  marque  and  reprisal ;  coin  money;  emit  bills  of  credit; 
make  any  thing  but  gold  and  silver  coin  a  tender  in  payment  of  debts; 
pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the  obli- 
gation of  contracts;  or  grant  any  title  of  nobility. 


CONSTITUTION    OF  221 

2.  No  state  shall,  without  the  consent  of  the  Congress,  lay  any  imposts 
or  duties  on  imports  or  exports,  except  what  may  be  absolutely  neces- 
sary for  executing  its  inspection  laws;  and  the  net  produce  of  all  duties 
and  imposts,  laid  by  any  state  on  imports  or  exports,  shall  be  for  the 
use  of  the  treasury  of  the  United  States ;  and  all  such  laws  shall  be 
subject  to  the  revision  and  control  of  the  Congress. 

3.  No  state  shall,  without  the  consent  of  the  Congress,  lay  any  duty 
of  tonnage,  keep  troops  or  ships  of  war  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  state,  or  with  a  foreign  power,  or 
engage  in  war,  unless  actually  invaded,  or  in  such  imminent  danger  as 
will  not  admit  of  delay. 

ARTICLE  II. 
Of  the  Executive. 

SECTION    I. 

1.  The  executive  power  shall  be  vested  in  a  President  of  the  United 
States  of  America.  He  shall  hold  his  office  during  the  term  of  four 
years,  and,  together  with  the  Vice-President,  chosen  for  the  same 
term,  be  elected  as  follows : 

2.  Each  state  shall  appoint,  in  such  manner  as  the  legislature  thereof 
may  direct,  a  number  of  electors,  equal  to  the  whole  number  of  sena- 
tors and  representatives  to  which  the  state  may  be  entitled  in  the  Con- 
gress: but  no  senator  or  representative,  or  person  holding  an  office 
of  trust  or  profit  under  the  United  States,  shall  be  appointed  an  elector. 

[3.  The  electors  shall  meei  in  their  respective  states,  and  vote  by  ballot  for 
two  persons,  of  whom  one  at  least  shall  not  be  an  inhabitant  of  the  same 
state  with  themselves.  And  they  shall  make  a  list  of  all  the  persons  voted 
for,  and  of  the  number  of  votes  for  each  ;  which  list  they  shall  sign  and  cer 
tify,  and  transmit  sealed  to  the  seat  of  government  of  the  United  States, 
directed  to  the  President  of  the  Senate.  The  President  of  the  Senate  shall, 
in  the  presence  of  the  Senate  and  House  of  Representatives,  open  all  the  cer- 
tificates, and  the  votes  shall  then  be  counted.  The  person  having  the  greatest 
number  of  votes  shall  be  the  President,  if  such  number  be  a  majority  of  the 
whole  number  of  electors  appointed ;  and  if  there  be  more  than  one  who 
have  such  majority,  and  have  an  equal  number  of  votes,  then  the  House  of 
Representatives  shall  immediately  choose  by  iallol  one  of  them  for  Presi- 
dent; and  if  no  person  have  a  majority,  then  from  the  five  highest  on  the 
list,  the  said  House  shall  in  like  manner  choose  the  President.  But  in  choos- 
ing the  President,  the  votes  shall  be  taken  by  states,  the  representation  from 
each  state  having  one  vote:  A  quorum  for  this  purpose  shall  consist  of  a 
member  or  members  from  two  thirds  of  the  states,  and  a  majority  of  all  the 
states  shall  be  necessary  to  a  choice.  In  every  case,  after  the  choice  of  the 
President,  the  person  having  the  greatest  number  of  votes  of  the  electors 
shall  betlie  Vice-President.  But  if  there  should  remain  two  or  more  who 
have  equal  votes,  the  Senate  shall  choose  from  them  by  ballot  the  Vice- 
President.]* 

3.  The  Congress  may  determine  the  time  of  choosing  the  electors, 
and  the  day  on  which  they  shall  give  their  votes;  which  day  shall  be 
the  same  throughout  the  United  States. 

4.  No  person,  except  a  natural  born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  Constitution,  shall  be 

*  This  clause  is  annulled.    See  AniendmentSi  Art.  12. 
19* 


222  TIIE    UNITED    STATES. 

eligible  to  the  office  of  President ;  neither  shall  any  person  be  eligible  to 
that  office  who  shall  not  have  attained  to  the  age  of  thirty-five  years, 
and  been  fourteen  years  a  resident  within  the  United  States. 

5.  In  case  of  the  removal  of  the  President  from  office,  or  of  his 
death,  resignation,  or  inability  to  discharge  the  powers  and  duties  of 
the  said  office,  the  same  shall  devolve  on  the  Vice-President ;  and  the 
Congress  may  by  law  provide  for  the  case  of  removal,  death,  resigna- 
tion, or  inability,  both  of  the  President  and  Vice-President,  declaring 
what  officer  shall  then  act  as  President,  and  such  officer  shall  act 
accordingly,  until  the  disability  be  removed,  or  a  President  shall  be 
elected. 

6.  The  President  shall,  at  stated  times,  receive  for  his  services  a 
compensation,  which  shall  neither  be  increased  nor  diminished  during 
the  period  for  which  he  shall  have  been  elected,  and  he  shall  not  receive 
within  that  period  any  other  emolument  from  the  United  States,  or  any 
jf  them. 

7.  Before  he  enter  on  the  execution  of  his  office,  he  shall  take  the 
following  oath  or  affirmation  : — 

UI  do  solemnly  swear  (or  affirm),  that  1  will  faithfully  execute  the  office 
of  President  of  the  United  States,  and  will,  to  the  best  of  my  ability, 
preserve,  protect,  and  defend  the  Constitution  of  the  United  States." 

SECTION    II. 

1.  The  President  shall  be  commander-in-chief  of  the  army  and  navy 
of  the  United  States,  and  of  the  militia  of  the  several  states  when  called 
into  the  actual  service  of  the  United  States;  he  may  require  the 
opinion,  in  writing,  of  the  principal  officer  in  each  of  the  executive  de- 
partments, upon  any  subject  relating  to  the  duties  of  their  respective 
offices,  and  he  shall  have  power  to  grant  reprieves  and  pardons  for 
offences  against  the  United  States,  except  in  cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and  consent  of  the 
Senate,  to  make  treaties,  provided  two-thirds  of  the  senators  present 
concur;  and  ne  shall  nominate,  and  by  and  with  the  advice  and  con- 
sent of  the  Senate,  shall  appoint  ambassadors,  other  public  ministers 
and  consuls,  judges  of  the  supreme  court,  and  all  other  officers  of  the 
United  States  whose  appointments  are  not  herein  otherwise  provided 
for,  and  which  shall  be  established  by  law :  but  the  Congress  may  by 
law  vest  the  appointment  of  such  inferior  officers  as  they  think  proper 
in  the  President  alone,  and  in  the  courts  of  law,  or  in  the  heads  of  de- 
partments. 

3.  The  President  shall  have  power  to  fill  up  all  vacancies  that  may 
happen  during  the  recess  of  the  Senate,  by  granting  commissions  which 
shall  expire  at  the  end  of  their  next  session. 

&ECTION    III. 

1.  He  shall,  from  time  to  time,  give  to  the  Congress  information 
of  the  state  of  the  Union,  and  recommend  to  their  consideration 
such  measures  as  he  shall  judge  necessary  and  expedient;  he  may, 
on  extraordinary  occasions,  convene  both  Houses,  or  either  of  them, 


CONSTITUTION    OP 


223 


and  ir  case  of  disagreement  between  them,  with  respect  to  the 
time  of  adjournment,  he  may  adjourn  them  to  such  time  as  he  shall 
think  proper;  he  shall  receive  ambassadors  and  other  public  ministers; 
he  shall  take  care  that  the  laws  be  faithfully  executed,  and  shall  com- 
mission all  the  officers  of  the  United  States. 

SECTION    IV. 

1.  The  President,  Vice-President,  and  all  civil  officers  of  the  United 
States,  shall  be  removed  from  office  on  impeachment  for,  and  conviction 
of,  treason,  bribery,  or  other  high  crimes  and  misdemeanors. 

ARTICLE  III. 
Of  the  Judiciary. 

SECTION  I. 

1.  The  judicial  power  of  the  United  States  shall  be  vested  in  one 
supreme  court,  and  in  such  inferior  courts  as  the  Congress  may,  from 
time  to  time,  ordain  and  establish.  The  judges,  both  of  the  supreme 
and  inferior  courts,  shall  hold  their  offices  during  good  behavior,  and 
shall,  at  stated  times,  receive  for  their  services  a  compensation,  which 
shall  not  be  diminished  during  their  continuance  in  office. 

SECTION    II. 

1.  The  judicial  power  shall  extend  to  all  cases,  in  law  and  equity, 
arising  under  this  Constitution,  the  laws  of  the  United  States,  and 
treaties  made,  or  which  shall  be  made,  under  their  authority ; — to  all 
cases  affecting  ambassadors,  other  public  ministers,  and  consuls; — to 
all  cases  of  admiralty  and  maritime  jurisdiction; — to  controversies  to 
which  the  United  States  shall  be  a  party; — to  controversies  between 
two  or  more  states; — between  a  state  and  citizens  of  another  state; — 
between  citizens  of  different  states; — between  citizens  of  the  same 
state  claiming  lands  under  grants  of  different  states,  and  between  a 
state,  or  the  citizens  thereof,  and  foreign  states,  citizens,  or  subjects. 

2.  In  all  cases  affecting  ambassadors,  other  public  ministers,  and 
consuls,  and  those  in  which  a  state  shall  be  party,  the  supreme 
court  shall  have  original  jurisdiction.  In  all  the  other  cases  before 
mentioned,  the  supreme  court  shall  have  appellate  jurisdiction,  both  as 
to  law  and  fact,  with  such  exceptions,  and  under  such  regulations  as 
the  Congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by 
jury ;  and  such  trial  shall  be  held  in  the  state  where  the  said  crimes 
shall  have  been  committed;  but  when  not  committed  within  any  state, 
the  trial  shall  be  at  such  place  or  places  as  the  Congress  may  by  law 
have  directed. 

section  m. 
1.  Treason  against  the  United  States  shall  consist  only  in  levying 
war  against  them,  or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort. 


224  THE    UNITED    STATES. 

2,  No  person  shall  be  convicted  of  treason  unless  on  the  testimony 
of  two  witnesses  to  the  same  overt  act,  or  on  confession  in  open  court. 

3.  The  Congress  shall  have  power  to  declare  the  punishment  of 
treason,  but  no  attainder  of  treason  shall  work  corruption  of  blood,  or 
forfeiture,  except  during  the  life  of  the  person  attainted. 

ARTICLE  IV. 

Miscellaneous. 

SECTION    I. 

1.  Full  faith  and  credit  shall  be  given  in  each  state  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other  state.  And  the 
Congress  may,  by  general  laws,  prescribe  the  manner  in  which  such 
acts,  records,  and  proceedings  shall  be  proved,  and  the  effect  thereof. 

SECTION    II. 

1.  The  citizens  of  each  state  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several  states. 

2.  A  person  charged  in  any  state  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice,  and  be  found  in  another  state,  shall,  on  de- 
mand of  the  executive  authority  of  the  state  from  which  he  fled,  be  deliv- 
ered up,  to  be  removed  to  the  state  having  jurisdiction  of  the  crime. 

3.  No  person  held  to  service  or  labor  in  one  state,  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence  of  any  law  or  regu- 
lation therein,  be  discharged  from  such  service  or  labor,  but  shall  be  de 
livered  up  on  claim  of  the  party  to  whom  such  service  or  labor  may  be 
due. 

SECTION   III, 

1.  New  states  may  be  admitted  by  the  Congress  into  this   Union 
but  no  new  state  shall  be  formed  or  erected  within  the  jurisdiction 
of  any  other  state,  nor  any  state  be  formed  by  the  junction  of  two  or 
more  states,  or  parts  of  states,  without  the  consent  of  the  legislatures  of 
the  states  concerned,  as  well  as  of  the  Congress. 

2.  The  Congress  shall  have  power  to  dispose  of  and  make  needful 
rules  and  regulations  respecting  the  territory  or  other  property  belonging 
to  the  United  States;  and  nothing  in  this  Constitution  shall  be  so  con 
strued  as  to  prejudice  any  claims  of  the  United  States,  or  of  any  par 
ticular  state. 

SECTION    IV. 

1.  The  United  States  shall  guaranty  to  every  state  in  this  Union  a 
republican  form  of  government,  and  shall  protect  each  of  them  against 
iavasion ;  and  on  application  of  the  legislature,  or  of  the  executive 
(vJhen  the  legislature  cannot  be  convened),  against  domestic  violence 

ARTICLE  V. 
Of  Amendments. 
1.  The  Congress,  whenever  two-thirds  of  both  Houses  shall  deem  it 
necessary  shall  propose  amendments  to  this  Constitution,  or,  on  the  ap- 


CONSTITUTION    OF 


225 


plication  of  the  legislatures  of  two-thirds  of  the  several  states,  shall 
call  a  convention  for  proposing  amendments,  which,  in  either  case, 
shall  be  valid  to  all  intents  and  purposes,  as  part  of  this  Constitution, 
when  ratified  by  the  legislatures  of  three-fourths  of  the  several  states, 
or  by  conventions  in  three-fourths  thereof,  as  the  one  or  the  other  mode 
of  ratification  may  be  proposed  by  the  Congress;  provided  that  no 
amendment,  which  may  be  made  prior  to  the  year  one  thousand  eight 
hundred  and  eight,  shall  in  any  manner  affect  the  first  and  fourth 
clauses  in  the  ninth  section  of  the  first  article ;  and  that  no  state,  witr 
out  its  consent,  shall  be  deprived  of  its  equal  suffrage  in  the  Senate. 

ARTICLE  VI. 

Miscellaneous. 

1.  All  debts  contracted,  and  engagements  entered  into,  before  the 
adoption  of  this  Constitution,  shall  be  as  valid  against  the  United 
States  under  this  Constitution  as  under  the  Confederation. 

2.  This  Constitution,  and  the  laws  of  the  United  States,  which  shall 
be  made  in  pursuance  thereof;  and  all  treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land;  and  the  judges  in  every  state  shall  be  bound  thereby, 
any  thing  in  the  Constitution  or  laws  of  any  state  to  the  contrary 
notwithstanding. 

3.  The  senators  and  representatives  before  mentioned,  and  the  mem- 
bers of  the  several  state  legislatures,  and  all  executive  and  judicial 
officers,  both  of  the  United  States  and  of  the  several  states,  shall  be 
bound  by  oath  or  affirmation,  to  support  this  Constitution ;  but  no  reli- 
gious test  shall  ever  be  required  as  a  qualification  to  any  office  or  public 
trust  under  the  United  States. 

ARTICLE  VII. 

Of  the  Ratification. 
1.  The  ratification  of  the  conventions  of  nine  states,  shall  be  sufficient 
for  the  establishment  of  this  Constitution  between  the  states  so  ratify- 
ing the  same. 

Done  in  convention,  by  the  unanimous  consent  of  the  States  present,  tho 
seventeenth  day  of  September,  in  the  year  of  our  Lord  one  thousand 
seven  hundred  and  eighty-seven,  and  of  the  independence  of  the  United 
States  of  America  the  twelfth.  In  witness  whereof  we  have  hereunto 
subscribed  our  names. 

GEO.  WASHINGTON,  President, 

and  Deputy  from  Virginia. 

New  Hampshire — John  Langdon,  Nicholas  Gilman.  Massachu- 
setts— Nathaniel  Gorham,  Rufus  King.  Connecticut — William  S. 
Johnson,  Roger  Sherman.  New  York — Alexander  Hamilton.  New 
Jersey — William  Livingston,  David  Brearley,  William  Paterson,  Jon* 
athan  Dayton.  Pennsylvania — Benjamin  Franklin,  Thomas  Mifflin, 
Robert  Morris,  George  Clymer,  Thomas  Fitzsimmons,  Jared  Ingersoll, 
James  Wilson,  Gouverneur  Morris.     Delaware — George  Read,  Gun* 


226  TIIE    UNITED    STATES. 

ning  Bedford,  jun.,  John  Dickinson,  Richard  Bassett,  Jacob  Bioom. 
Maryland — James  M'Henry,  Daniel  of  St.  Thomas  Jenifer,  Daniel 
Carroll.  Virginia — John  Blair,  James  Madison,  jun.  North  Caro- 
lina— William  Blount,  Richard  Dobbs  Spaight,  Hugh  Williamson. 
South  Carolina — John  Rutledge,  Charles  Cotesworth  Pinckney, 
Charles  Pinckney,  Pierce  Butler.  Georgia — William  Few,  Abraham 
Baldwin.  Attest:  > 

William  Jackson,  Secretary.  $ 


[Congress  at  their  first  session  under  the  Constitution,  held  in  the 
city  of  New  York,  in  1789,  proposed  to  the  legislatures  of  the  seve- 
ral States  twelve  amendments,  ten  of  which  only  were  adopted. 
They  are  the  first  ten  of  the  following  amendments;  and  they 
were  ratified  by  three-fourths,  the  constitutional  number,  of  the 
States,  on  the  15th  of  December,  17.01.  The  llth  amendment  was 
proposed  at  the  first  session  of  the  third  Congress,  and  was  declared 
in  a  message  from  the  President  of  the  United  States  to  both 
Houses  of  Congress,  dated  the  8th  of  January,  1798,  to  have  been 
adopted  by  the  constitutional  number  of  States.  The  12th  amend- 
ment, which  was  proposed  at  the  first  session  of  the  eighth  Con- 
gress, was  adopted  by  the  constitutional  number  of  States  in  the 
year  1804,  according  to  a  public  notice  by  the  Secretary  of  State, 
dated  the  25th  of  September,  1804.] 

AMENDMENTS 

To  the  Constitution  of  the  United  States,  ratified  according  to  the  provision* 
of  the  Fifth  Article  of  the  foregoing  Constitution. 

Article  I.  Congress  shall  make  no  law  respecting  an  establishmenl 
of  religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging  ths 
freedom  of  speech,  or  of  the  press;  or  the  right  of  the  people  peaceably 
to  assemble,  and  to  petition  the  government  for  a  redress  of  grievances 

Art.  II.  A  well  regulated  militia  being  necessary  to  the  security  of 
a  free  state,  the  right  of  the  people  to  keep  and  bear  arms  shall  not  be 
infringed. 

Art.  III.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house 
without  the  consent  of  the  owner,  nor  in  time  of  war  but  in  a  manner  tc 
be  prescribed  by  law. 

Art.  IV.  The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures,  shall 
not  be  violated,  and  no  warrants  shall  issue  but  upon  probable  cause, 
supported  by  oath  or  affirmation,  and  particularly  describing  the  place 
to  be  searched,  and  the  persons  or  things  to  be  seized. 

Artt  V.  No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury, 
except  in  cases  arising  in  the  land  or  naval  forces,  o-  in  the  militia,  when 


CONSTITUTION  OF  227 

in  actual  service  in  time  of  war  or  public  danger;  nor  shall  any  person 
be  subject,  for  the  same  offence,  to'  be  twice  put  in  jeopardy  of  life  or 
limb;  nor  shall  be  compelled,  in  any  criminal  case,  to  be  a  witness 
against  himself,  nor  be  deprived  of  life,  liberty,  or  property,  without  due 
process  of  law;  nor  shall  private  property  be  taken  for  public  use  with- 
out just  compensation. 

Art.  VI.  In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  state  and 
district  wherein  the  crime  shall  have  been  committed,  which  district  shall 
have  been  previously  ascertained  by  law,  and  to  be  informed  of  the  na- 
ture and  cause  of  the  accusation ;  to  be  confronted  with  the  witnesses 
against  him  ;  to  have  compulsory  process  for  obtaining  witnesses  in  his 
favor,  and  to  have  the  assistance  of  counsel  for  his  defence. 

Art.  VII.  In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and 
no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any  court  of 
the  United  States,  than  according  to  the  rules  of  the  common  law. 

Art.  VIII.  Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

Art.  IX.  The  enumeration,  in  the  Constitution,  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others  retained  by  the  people. 

Art.  X.  The  powers  not  delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people. 

Art.  XI.  The  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit,  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  state,  or  by  citi- 
zens or  subjects  of  any  foreign  state. 

Art.  XII.  The  electors  shall  meet  in  their  respective  States,  and  vote 
by  ballot  for  President  and  Vice-President,  one  of  whom,  at  least,  shall 
not  be  an  inhabitant  of  the  same  state  with  themselves;  they  shall 
name  in  their  ballots  the  person  voted  for  as  President,  and  in  distinct  bal- 
lots the  person  voted  for  as  Vice-President,  and  they  shall  make  distinct 
lists  of  all  persons  voted  for  as  President,  and  of  all  persons  voted  for 
as  Vice-President,  and  of  the  number  of  votes  for  each,  which  lists  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  the  government 
of  the  United  States,  directed  to  the  President  of  the  Senate.  The 
President  of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House 
of  Representatives,  open  all  the  certificates,  and  the  votes  shall  then  be 
counted ;  the  person  having  the  greatest  number  of  votes  for  President 
shall  be  the  President,  if  such  number  be  a  majority  of  the  whole  num- 
ber of  electors  appointed ;  and  if  no  person  have  such  majority,  then 
from  the  persons  having  the  highest  numbers,  not  exceeding  three,  on  the 
list  of  those  voted  for  as  President,  the  House  of  Representatives  shall 
choose  immediately,  by  ballot,  the  President.  But  in  choosing  the  Pre- 
sident, the  votes  shall  be  taken  by  states,  the  represent!)  tion  from  each 
state  having  one  vote ;  a  quorum  for  this  purpose  shall  consist  of  a 
member  or  members  from  two-thirds  of  the  states,  and  a  majority  of 
all  the  states  shall  be  necessary  to  a  choice.     And  if  the  House  of  Re- 


228  THE    UNITED    STATES. 

preservatives  shall  not  choose  a  President,  whenever  the  right  of  choice 
shall  devolve  upon  them,  before  the  fourth  day  of  March  next  follow- 
ing, then  the  Vice-President  shall  act  as  President,  as  in  the  case  of  the 
death  or  other  constitutional  disability  of  the  President.  The  person 
having  the  greatest  number  of  votes  as  Vice-President  shall  be  the  Vice- 
President,  if  such  number  be  a  majority  of  the  whole  number  of  electors 
appointed,  and  if  no  person  have  a  majority,  then  from  the  two  highest 
numbers  on  the  list  the  Senate  shall  choose  the  Vice-President;  a  quo 
rum  for  the  purpose  shall  consist  of  two-thirds  of  the  whole  number  of 
senators,  and  a  majority  of  the  whole  number  shall  be  necessary  to  a 
choice.  But  no  person  constitutionally  ineligible  to  the  office  of  Presi- 
dent, shall  be  eligible  to  that  of  Vice-President  of  the  United  States. 

[Note  1.  Another  amendment  was  proposed  as  article  XIII.  at  the  second 
session  of  the  eleventh  Congress,  but  not  having  been  ratified  by  a  sufficient 
number  of  the  states,  has  not  become  valid,  as  a  part  of  the  Constitution  of 
the  United  States.  It  is  erroneously  given  as  a  part  of  the  Constitution,  in 
page  74,  vol.  I.  Laws  of  the  United  States,  published  by  Bioren  &.  Duane, 
in  1815.] 

'Note  2.  The  Constitution,  as  above  printed,  has  been  carefully  compared 
with  the  copy  in  the  Laws  of  the  United  States,  published  by  authority,  and 
also  with  one  in  the  National  Calendar  for  the  year  1826,  which  was  copied 
from  the  roll  in  the  Department  of  State.] 

[Note  3.  The  ratification  of  the  Constitution  by  the  state  of  New  Hamp- 
shire, being  the  9th  in  order,  was  laid  before  Congress  on  the  2d  of  July,  1788, 
and,  with  the  ratifications  of  the  other  states,  was  referred  to  a  committee,  to 
report  an  act  for  carrying  the  new  system  into  operation.  An  act  for  this 
purpose  was  reported  on  the  14th  of  the  same  month,  and  was  passed  on  the 
13th  of  September  following.]—  American  Almanac,  1831. 


ORDINANCE  op    1787-  229 


ORDINANCE  OF  1787 


The  following  Ordinance  is  the  fundamental  law  of  the  States  of 
Ohio,  Indiana,  Illinois,  Michigan  and  Wisconsin.  It  is  fundamental, 
because  passed  prior  to  the  Constitution, — and  is  a  matter  of  com- 
pact between  the  several  states  vesting  rights, — which  the  Constitu- 
tion, by  its  terms,  did  not  control.  It  was  reported  by  Nathan  Dane, 
celebrated,  both  as  the  author  of  this  Ordinance,  and  of  a  Digest  of 
American  Law. 

IN  CONGRESS,  JULY  13,   1787- 

An  Ordinance  for  the  government  of  the  territory  of  the  United  States,  north- 
west of  the  river  Ohio. 

Be  it  ordained,  by  the  United  States  in  Congress  assembled,  that 
the  said  territory,  for  the  purposes  of  temporary  government,  be  one 
district;  subject,  however,  to  be  divided  into  two  districts,  as  future  cir- 
cumstances may,  in  the  opinion  of  Congress,  make  it  expedient. 

Be  it  ordained,  by  the  authority  aforesaid,  that  the  estates  both  of 
resident  and  non-resident  proprietors  in  the  said  territory,  dying  intes- 
tate, shall  descend  to,  and  be  distributed  among  their  children,  and  the 
descendants  of  a  deceased  child,  in  equal  parts;  the  descendants  of  a 
deceased  child  or  grand-child,  to  take  the  share  of  their  deceased  parent, 
in  equal  parts,  among  them ;  and  where  there  shall  be  no  children  or 
descendants,  then  in  equal  parts  to  the  next  of  kin,  in  equal  degree;  and 
among  collaterals,  the  children  of  a  deceased  brother  or  sister  of  the  intes- 
tate shall  have,  in  equal  parts,  among  them,  their  deceased  parent's  share ; 
and  there  shall  in  no  case  be  a  distinction  between  kindred  of  the  whole 
and  half  blood ;  saving  in  all  cases  to  the  widow  of  the  intestate,  her 
third  part  of  the  real  estate  for  life,  and  one  third  part  of  the  personal 
estate ;  and  this  law  relative  to  descents  and  dower,  shall  remain  in  full 
force  until  altered  by  the  legislature  of  the  district.  And  until  the  gov- 
ernor and  judges  shall  adopt  laws  as  hereinafter  mentioned,  estates  in 
the  said  territory  may  be  devised  or  bequeathed  by  wills  in  writing, 
signed  and  sealed  by  him  or  her,  in  whom  the  estate  may  be  (being  of 
full  age),  and  attested  by  three  witnesses;  and  real  estates  may  be 
conveyed  by  lease  and  release,  or  bargain  and  sale,  signed,  sealed  and 
delivered  by  the  person,  being  of  full  age,  in  whom  the  estate  may  be, 
and  attested  by  two  witnesses,  provided  such  wills  be  duly  proved,  and 
such   conveyances  be  acknowledged,   or  the   execution   thereof  duly 


230'  ORDINANCE    OF    1787- 

proved,  and  be  recorded  within  one  year  after  proper  magistrates,  courts, 
and  registers  shall  be  appointed  for  that  purpose ;  and  personal  property 
may  be  transferred  by  delivery,  saving,  however,  to  the  French  and  Ca- 
nadian inhabitants,  and  other  settlers  of  the  Kaskaskias,  Saint  Vincents, 
and  the  neighboring  villages,  who  have  heretofore  professed  themselves 
citizens  of  Virginia,  their  laws  and  customs  now  in  force  among  them, 
relative  to  descent  and  conveyance  of  property. 

Be  it  ordained,  by  the  authority  aforesaid,  that  there  shall  be  ap- 
pointed from  time  to  time,  by  Congress,  a  governor,  whose  commission 
shall  continue  in  force  for  the  term  of  three  years,  unless  sooner  re- 
voked by  Congress;  he  shall  reside  in  the  district,  and  have  a  freehold 
estate  therein,  in  one  thousand  acres  of  land,  while  in  the  exercise  of  his 
office.  There  shall  be  appointed  from  time  to  time,  by  Congress,  a  sec- 
retary, whose  commission  shall  continue  in  force  for  four  years,  unless 
sooner  revoked ;  he  shall  reside  in  the  district,  and  have  a  freehold  es- 
tate therein,  in  five  hundred  acres  of  land,  while  in  the  exercise  of  his 
office;  it  shall  be  his  duty  to  keep  and  preserve  the  acts  and  laws  pass- 
ed by  the  legislature,  and  the  public  records  of  the  district,  and  the  pro- 
ceedings of  the  governor  in  his  executive  department;  and  transmit  au- 
thentic copies  of  such  acts  and  proceedings,  every  six  months,  to  the 
secretary  of  Congress.  There  shall  also  be  appointed  a  court  to  consist 
of  three  judges,  any  two  of  whom  to  form  a  court,  who  shall  have  a 
common  law  jurisdiction,  and  reside  in  the  district,  and  have  each 
therein  a  freehold  estate  in  five  hundred  acres  of  land,  while  in  the  ex- 
ercise of  their  offices;  and  their  commissions  shall  continue  in  force 
during  good  behavior. 

The  governor  and  judges,  or  a  majority  of  them,  shall  adopt  and  pub- 
lish in  the  district,  such  laws  of  the  original  states,  criminal  and  civil, 
as  may  be  necessary,  and  best  suited  to  the  circumstances  of  the  district, 
and  report  them  to  Congress,  from  time  to  time,  which  laws  shall  be  in 
force  in  the  district  until  the  organization  of  the  general  assembly  there- 
in, unless  disapproved  of  by  Congress;  but  afterwards,  the  legislature 
shall  have  authority  to  alter  them  as  they  shall  think  fit. 

The  governor  for  the  time  being,  shall  be  commander-in-chief  of  the 
militia,  appoint  and  commission  all  officers  in  the  same,  below  the  rank 
of  general  officers.  All  general  officers  shall  be  appointed  and  commis- 
sioned by  Congress. 

Previous  to  the  organization  of  the  general  assembly,  the  governor 
shall  appoint  such  magistrates  and  other  civil  officers,  in  each  county 
or  township,  as  he  shall  find  necessary  for  the  preservation  of  the  peace 
and  good  order  in  the  same.  After  the  general  assembly  shall  be  or- 
ganized, the  powers  and  duties  of  magistrates  and  other  civil  officers 
shall  be  regulated  and  defined  by  the  said  assembly;  but  all  magistrates 
and  other  civil  officers,  not  herein  otherwise  directed,  shall,  during  the 
continuance  of  this  temporary  government,  be  appointed  by  the  governor. 

For  the  prevention  of  crimes  and  injuries,  the  laws  to  be  adopted  or 
made,  shall  have  force  in  all  parts  of  the  district,  and  for  the  execution 
of  process,  criminal  and  civil,  the  governor  shall  make  proper  divisions 
thereof;  and  he  shall  proceed  from  time  to  time,  as  circumstances  may 


ORDINANCE    OF    1787.  231 

require,  to  lay  out  the  parts  of  the  district  in  which  the  Indian  titles 
shall  have  been  extinguished,  into  counties  and  townships,  subject, 
however,  to  such  alterations  as  may  thereafter  be  made  by  the  legis- 
lature. 

So  soon  as  there  shall  be  five  thousand  free  male  inhabitants,  of  full 
age,  in  the  district,  upon  giving  proof  thereof  to  the  governor,  they  shall 
receive  authority,  with  time  and  place,  to  elect  representatives  from 
their  counties  or  townships,  to  represent  them  in  the  general  assembly: 
provided,  that  for  every  five  hundred  free  male  inhabitants  there  shall 
be  one  representative,  and  so  on  progressively  with  the  number  of  free 
male  inhabitants,  shall  the  right  of  representation  increase,  until  the 
number  of  representatives  shall  amount  to  twenty-five,  after  which  the 
number  and  proportion  of  representatives  shall  be  regulated  by  the  legis- 
lature ;  provided,  that  no  person  be  eligible  or  qualified  to  act  as  a  repre- 
sentative, unless  he  shall  have  been  a  citizen  of  one  of  the  United  States 
three  years,  and  be  a  resident  in  the  district,  or  unless  he  shall  have  re- 
sided in  the  district  three  years,  and  in  either  case  shall  likewise  hold  in 
his  own  right,  in  fee  simple,  two  hundred  acres  of  land  within  the  same ; 
provided  also,  that  a  freehold  in  fifty  acres  of  land  in  the  district,  having 
been  a  citizen  of  one  of  the  states,  and  being  resident  in  the  district,  or 
the  like  freehold  and  two  years  residence  in  the  district,  shall  be  neces- 
sary to  qualify  a  man  as  an  elector  of  a  representative. 

The  representative  thus  elected,  shall  serve  for  the  term  of  two  years, 
and  in  case  of  the  death  of  a  representative,  or  removal  from  office,  the 
governor  shall  issue  a  writ  to  the  county  or  township  for  which  he  was 
a  member,  to  elect  another  in  his  stead,  to  serve  for  the  residue  of 
the  term. 

The  general  assembly,  or  legislature,  shall  consist  of  the  governor, 
legislative  council,  and  a  house  of  representatives.  The  legislative  coun- 
cil shall  consist  of  five  members,  to  continue  in  office  five  years,  unless 
sooner  removed  by  Congress,  any  three  of  whom  to  be  a  quorum,  and 
the  members  of  the  council,  shall  be  nominated  and  appointed  in  the 
following  manner,  to  wit :  as  soon  as  representatives  shall  be  elected, 
the  governor  shall  appoint  a  time  and  place  for  them  to  meet  together, 
and,  when  met,  they  shall  nominate  ten  persons,  residents  in  the  district, 
and  each  possessed  of  a  freehold  in  five  hundred  acres  of  land,  and  re- 
turn their  names  to  Congress;  five  of  whom  Congress  shall  appoint  and 
commission  to  serve  as  aforesaid ;  and  whenever  a  vacancy  shall  happen 
in  the  council,  by  death  or  removal  from  office,  the  house  of  representa- 
tives shall  nominate  two  persons,  qualified  as  aforesaid,  for  each  vacan- 
cy, and  return  their  names  to  Congress,  one  of  whom  Congress  shall 
appoint  and  commission  for  the  residue  of  the  term ;  and  every  five 
years,  four  months  at  least  before  the  expiration  of  the  time  of  service 
of  the  members  of  council,  the  said  house  shall  nominate  ten  persons, 
qualified  as  aforesaid,  and  return  their  names  to  Congress,  five  of  whom 
Congress  shall  appoint  and  commission  to  serve  as  members  of  the  coun- 
cil five  years,  unless  sooner  removed.  And  the  governor,  legislativ'8 
council,  and  house  of  representatives,  shall  have  authority  to  make  laws 
in  all  cases  for  the  good  government  of  the  district,  not  repugnant  to  the 


232  ordinance  OF  1787. 

principles  and  articles  in  this  ordinance  established  and  declared.  And 
all  bills  having  passed  by  a  majority  in  the  house,  and  by  a  majority 
in  the  council,  shall  be  referred  to  the  governor  for  his  assent ;  but  no 
bill  or  legislative  act  whatever,  shall  be  of  any  force  without  his  assent. 
The  governor  shall  have  power  to  convene,  prorogue,  and  dissolve  the 
general  assembly,  when  in  his  opinion  it  shall  bo  expedient. 

The  governor,  judges,  legislative  council,  secretary,  and  such  other 
officers  as  Congress  shall  appoint  in  the  district,  shall  take  an  oath  or 
affirmation  of  fidelity,  and  of  office — the  governor  before  the  president 
of  Congress,  and  all  other  officers  before  the  governor.  As  soon  as  a 
legislature  shall  be  formed  in  the  district,  the  council  and  house,  assem- 
bled in  one  room,  shall  have  authority  by  joint  ballot  to  elect  a  delegate 
to  Congress,  who  shall  have  a  seat  in  Congress,  with  the  right  of  de- 
bating, but  not  of  voting,  during  this  temporary  government. 

And  for  extending  the  fundamental  principles  of  civil  and  religious 
liberty,  which  form  the  basis  whereon  these  republics,  their  laws  and 
constitutions,  are  erected ;  to  fix  and  establish  those  principles  as  the 
basis  of  all  laws,  constitutions,  and  governments,  which  forever  hereaf- 
ter shall  be  formed  in  the  said  territory ;  to  provide  also  for  the  esta- 
blishment of  states,  and  permanent  government  therein,  and  for  their 
admission  to  a  share  in  the  federal  councils  on  an  equal  footing  with 
the  original  states,  at  as  early  periods  as  may  be  consistent  with  the 
general  interest: 

It  is  hereby  ordained  and  declared,  by  the  authority  aforesaid,  that 
the  following  articles  shall  be  considered  as  articles  of  compact  between 
the  original  states  and  the  people  and  states  in  the  said  territory,  and 
forever  remain  unalterable,  unless  by  common  consent,  to  wit : 

Article  I.  No  person,  demeaning  himself  in  a  peaceable  and  order- 
ly manner,  shall  ever  be  molested  on  account  of  his  mode  of  worship 
or  religious  sentiments  in  the  said  territory. 

Art.  II.  The  inhabitants  of  the  said  territory  shall  always  be  enti- 
tled to  the  benefit  of  the  writ  of  habeas  corpus,  and  of  the  trial  by 
jury;  of  a  proportionate  representation  of  the  people  in  the  legislature, 
and  of  judicial  proceedings  according  to  the  course  of  the  common  law; 
all  persons  shall  be  bailable  unless  for  capital  offences,  where  the  proof 
shall  be  evident,  or  the  presumption  great;  all  fines  shall  be  moderate, 
and  no  cruel  or  unusual  punishments  shall  be  inflicted ;  no  man  shall 
be  deprived  of  his  liberty  or  property,  but  by  the  judgment  of  his 
peers,  or  the  law  of  the  land ;  and  should  the  public  exigencies  make 
it  necessary  for  the  common  preservation  to  take  any  person's  property, 
or  to  demand  his  particular  services,  full  compensation  shall  be  made  for 
the  same ;  and  in  the  just  preservation  of  rights  and  property,  it  is  un 
derstood  and  declared,  that  no  law  ought  ever  to  be  made,  or  have 
force  in  the  said  territory,  that  shall  in  any  manner  whatever,  interfere 
with,  or  affect  private  contracts  or  engagements,  bona  fide,  and  withoul 
fraud  previously  formed. 

Art.  III.  Religion,  morality,  and  knowledge,  being  necessary  to 
good  government  and  the  happiness  of  mankind,  schools  and  the  means 
of  education  shall  forever  be  encouraged.     The  utmost  good  faith  shali 


ORDINANCE   OF    1787-  233 

always  be  observed  towards  the  Indians;  their  lands  and  property  shall 
never  be  taken  from  them  without  their  consent ;  and  in  their  property, 
rights,  and  liberty,  they  never  shall  be  invaded  or  disturbed,  unless 
in  just  and  lawful  wars  authorized  by  Congress;  but  laws  founded  in 
justice  and  humanity,  shall,  from  time  to  time,  be  made,  for  preventing 
wrongs  being  done  to  them,  and  for  preserving  peace  and  friendship 
with  them. 

Art.  IV.  The  said  territory,  and  the  states  which  may  be  formed 
therein,  shall  forever  remain  a  part  of  this  confederacy  of  the  United 
States  of  America,  subject  to  the  articles  of  confederation,  and  to  such 
alteration  therein,  as  shall  be  constitutionally  made;  and  to  all  the  acts 
and  ordinances  of  the  United  States  in  Congress  assembled,  con- 
formable thereto. .,  The  inhabitants  and  settlers  in  the  said  territory, 
shall  be  subject  to  pay  a  part  of  the  federal  debts  contracted,  or  .to  be 
contracted,  and  a  proportional  part  of  the  expenses  of  government,  to 
be  apportioned  on  them,  by  Congress,  according  to  the  same  common 
rule  and  measure  by  which  apportionments  thereof  shall  be  made  on 
the  other  states ;  and  the  taxes  for  paying  their  proportion,  shall  be  laid 
and  levied  by  the  authority  and  direction  of  the  legislatures  of  the  dis- 
trict, or  districts,  or  new  states,  as  in  the  original  states,  within  the 
time  agreed  upon  by  the  United  States  in  Congress  assembled.  The 
legislatures  of  those  districts,  or  new  states,  shall  never  interfere  with 
the  primary  disposal  of  the  soil  by  the  United  States  in  Congress  assem- 
bled, nor  with  any  regulations  Congress  may  find  necessary  for  securing 
the  title  in  such  soil  to  the  bona  fide  purchasers.  No  tax  shall  be  im- 
posed on  lands  the  property  of  the  United  States;  and  in  no  case  shall 
non-resident  proprietors  be  taxed  higher  than  residents.  The  navigable 
waters  leading  into  the  Mississippi  and  St.  Law.rence,  and  the  carrying 
,      places  between  the  same  shall  be  common  highways,  and   forever  free, 

as  well  to  the  inhabitants _of  .the  said  territory,  as  to,  the  citizens  of-  the.  „ 
**  United  States,  and  those  of  any  other  states  that  may  be  admitted  into 
the  confederacy,  without  any  tax,  impost,  or  duty  therefor. 

Art.  V.  There  shall  be  formed  in  the  said  territory,  not  less  than* 
three,  nor  more  than  .five  states;  'afYd  the  boundaries  of  thS  states,  as  »% 
soon  as  Virginia  shall  alter  her  act  of  .session  and  consent  fo  the  same, 
shall  become  fixed  and  established  as  follows,  to  wij :  The  western 
jst'ate^in.the  said  territory  shall  be*  bounded,  ay  the^  Mississippi,  .t.h<4  \ 
k  Ohio,  and  Wabash  rivers;  a  direct  line  drawn,  from  the  Wabash  and 
Post  Vincents  due  north  to  the  territorial  line  between  the  United 
States  and  Canada,, and  by  the  said  territoriaUjlige^to  the  I^ake-jojf  the 
Wood?  and  Mississippi.  The  middle  state  shall  be  bounded  by  the 
laid  direct  line,  the  Wabash  from  Post  Vincents  to  the  Ohio,  by  the 
Ohio,  by  a  direct  fine  drawn  due  north  from  the  mouth  of  the  Great 
Miami  to  the  said  territorial  line,  and  by  said  terrritorial  line.  The 
*  eastern  state*shaiJ»be".bounded  by  the  last-mentioned  direct  line,  the 
Ohio,  Perrrfsylvania,  and  the  said  territorial  line;  provided,  however, 
and  it  is  further  understood  and  declared,  that  the  boundaries  of  these 
three  states  shall  be  subject  so  far  to  be  altered,  that  if  congress  shall  here- 
after find  if  expedient,  they  shall  have  authority  to  form,  one  or  two 
20* 


/ 


234 


ORDINANCE    OF    1787- 


states  in  that  part  of  the  said  territory  which  lies  north  of  an  east  anxl 
west  line  drawn  through  the  southerly  bend  or  extreme  of  Lake  Michi- 
gan:  and  whenever  any  of  the  said  states  shall  have  sixty  thousand 
free  inhabitants  therein,  such  state  shall  be  admitted  by  its  delegates, 
into  the  Congress  of  the  United  States,  on  an  equal  footing  with  the 
original  states,  in  all  respects  whatsoever;  and  shall  be  at  liberty  to 
form  a  permanent  constitution  and  state  government :  Provided,  the 
constitution  and  government  so  to  be  formed,  shall  be  republican,  and 
in  conformity  to  the  principles  contained  in  these  articles :  and  so  far 
as  it  can  be  consistent  with  the  general  interest  of  the  confederacy, 
such  admission  shall  be  allowed  at  an  earlier  period,  and  when  there 
may  be  a  less  number  of  free  inhabitants  in  the  state  than  sixty  thousand. 

Art.  VI.  There  shall  be  neither  slavery  nor  involuntary  servitude  in 
the  said  territory,  otherwise  than  in  punishment  of  crimes  whereof  the 
party  shall  have  been  duly  convicted:  Provided,  always,  that  any 
person  escaping  into  the  same,  from  whom  labor  or  service  is  lawfully 
claimed  in  any  one  of  the  original  states,  such  fugitive  may  be  lawfully 
reclaimed  and  conveyed  to  the  person  claiming  his  or  her  labor  or  ser- 
vice as  aforesaid. 

Be  it  ordained,  by  the  authority  aforesaid,  that  the  resolutions  of  the 
23d  of  April,  1784,  relative  to  the  subject  .of  this  ordinance,  be,  and  the 
same  are  hereby  reoealed  and  declared  null  and  void. 


J^~ 


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